(45) In order to be in conformity and to ensure that consumers are not deprived of their rights, for example in cases where the contract sets very low standards, the digital_content or digital_service should not only comply with the subjective requirements for conformity, but should in addition comply with the objective requirements for conformity set out in this Directive.
Conformity should be assessed, inter alia, by considering the purpose for which digital_content or digital_services of the same type would normally be used.
It should also possess the qualities and performance features which are normal for digital_content or digital_services of the same type and which consumers can reasonably expect, given the nature of the digital_content or digital_service, and taking into account any public statements on the specific characteristics of the digital_content or digital_service made by or on behalf of the trader or other persons in previous links of the chain of transactions.
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(46) The standard of reasonableness with regard to any reference in this Directive to what can be reasonably expected by a person should be objectively ascertained, having regard to the nature and purpose of the digital_content or digital_service, the circumstances of the case and to the usages and practices of the parties involved.
In particular, what is considered to be a reasonable time for bringing the digital_content or digital_service into conformity should be objectively ascertained, having regard to the nature of the lack of conformity.
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(48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to the processing of personal_data in connection with any contract falling within the scope of this Directive.
In addition, this Directive should be without prejudice to the rights, obligations and non-contractual remedies provided for by Regulation (EU) 2016/679.
Facts leading to a lack of compliance with requirements provided for by Regulation (EU) 2016/679, including core principles such as the requirements for data minimisation, data protection by design and data protection by default, may, depending on the circumstances of the case, also be considered to constitute a lack of conformity of the digital_content or digital_service with subjective or objective requirements for conformity provided for in this Directive.
One example could be where a trader explicitly assumes an obligation in the contract, or the contract can be interpreted in that way, which is also linked to the trader's obligations under Regulation (EU) 2016/679.
In that case, such a contractual commitment can become part of the subjective requirements for conformity.
A second example could be where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the same time render the digital_content or digital_service unfit for its intended purpose and, therefore, constitute a lack of conformity with the objective requirement for conformity which requires the digital_content or digital_service to be fit for the purposes for which digital_content or digital_services of the same type would be normally used.
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(49) In order to ensure sufficient flexibility, it should be possible for the parties to deviate from the objective requirements for conformity.
Such a deviation should only be possible if the consumer was specifically informed about it and if the consumer accepts it separately from other statements or agreements and by way of active and unequivocal conduct.
Both conditions could, for instance, be fulfilled by ticking a box, pressing a button or activating a similar function.
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(53) Restrictions of the consumer's use of the digital_content or digital_service in accordance with this Directive could result from limitations imposed by the holder of intellectual property rights in accordance with intellectual property law.
Such restrictions can arise from the end-user license agreement under which the digital_content or digital_service is supplied to the consumer.
This can be the case when, for instance, an end-user licence agreement prohibits the consumer from making use of certain features related to the functionality of the digital_content or digital_service.
Such a restriction could render the digital_content or digital_service in breach of the objective requirements for conformity laid down in this Directive, if it concerned features which are usually found in digital_content or digital_services of the same type and which the consumer can reasonably expect.
In such cases, the consumer should be able to claim the remedies provided for in this Directive for the lack of conformity against the trader who supplied the digital_content or digital_service.
The trader should only be able to avoid such liability by fulfilling the conditions for derogating from the objective requirements for conformity as laid down in this Directive, namely only if the trader specifically informs the consumer before the conclusion of the contract that a particular characteristic of the digital_content or digital_service deviates from the objective requirements for conformity and the consumer has expressly and separately accepted that deviation.
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(54) Legal defects are a particularly important issue in relation to digital_content or digital_services, which are subject to intellectual property rights.
Restrictions on the consumer's use of digital_content or a digital_service in accordance with this Directive could be a result of a violation of third-party rights.
Such violation might effectively bar the consumer from enjoying the digital_content or digital_service or some of its features, for instance when the consumer cannot access the digital_content or digital_service at all or cannot do so lawfully.
That might be due to the fact that the third party rightfully compels the trader to stop infringing those rights and to discontinue offering the digital_content or digital_service in question or that the consumer cannot use the digital_content or digital_service without infringing the law.
In the event of a violation of third-party rights that results in a restriction that prevents or limits the use of the digital_content or digital_service in accordance with the subjective and objective requirements for conformity, the consumer should be entitled to the remedies for the lack of conformity, unless national law provides for the nullity of the contract, or for its rescission, for example for breach of legal warranty against eviction.
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(74) This Directive should also address modifications, such as updates and upgrades, which are carried out by traders on the digital_content or digital_service which is supplied or made accessible to the consumer over a period of time.
Considering the fast-evolving character of digital_content and digital_services, such updates, upgrades or similar modifications may be necessary and are often advantageous for the consumer.
Some modifications, for instance those stipulated as updates in the contract, may form part of the contractual commitment.
Other modifications can be required to fulfil the objective requirements for conformity of the digital_content or digital_service as set out in this Directive.
Yet other modifications, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract, would have to be expressly agreed to by the consumer when concluding the contract.
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(75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital_content or digital_service, provided that the contract gives a valid reason for such a modification.
Such valid reasons could encompass cases where the modification is necessary to adapt the digital_content or digital_service to a new technical environment or to an increased number of users or for other important operational reasons.
Such modifications are often to the advantage of the consumer as they improve the digital_content or digital_service.
Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications.
In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital_content or digital_service in more than only a minor manner.
The extent to which modifications negatively impact the use of or access to the digital_content or digital_service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital_content or digital_service and to the quality, functionality, compatibility and other main features which are normal for digital_content or digital_services of the same type.
The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital_content or digital_service, for instance as a consequence of distributing a new version of the digital_content or digital_service.
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(77) Where a modification negatively impacts, in more than a minor manner, the access or use of the digital_content or digital_service by the consumer, the consumer should enjoy as a result of such a modification the right to terminate the contract free of any charge.
Alternatively, the trader can decide to enable the consumer to maintain access to the digital_content or digital_service at no additional cost, without the modification and in conformity, in which case the consumer should not be entitled to terminate the contract.
However, if the digital_content or digital_service that the trader enabled the consumer to maintain is no longer in conformity with the subjective and the objective requirements for conformity, the consumer should be able to rely on the remedies for a lack of conformity as provided for under this Directive.
Where the requirements for such a modification as laid down in this Directive are not satisfied and the modification results in a lack of conformity, the consumer's right to bring the digital_content or digital_service into conformity, have the price reduced or the contract terminated, as provided for under this Directive, should remain unaffected.
Similarly, where, subsequent to a modification, a lack of conformity of the digital_content or digital_service that has not been caused by the modification arises, the consumer should continue to be entitled to rely on remedies as provided for under this Directive for the lack of conformity in relation to this digital_content or digital_service.
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(86) Since the objectives of this Directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law related obstacles for the supply of digital_content or digital_services while preventing legal fragmentation, cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national laws through harmonised contract law rules which would also facilitate coordinated enforcement actions, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.
In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
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