(15) Member States should also remain free, for example, to regulate the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations.
For example, Member States should be free to regulate whether a consumer, in cases of a lack of conformity, is to be entitled to withhold payment of the price or part thereof until the trader has brought the digital_content or digital_service into conformity, or whether the trader is to be entitled to retain any reimbursement due to the consumer upon termination of the contract until the consumer complies with the obligation provided for in this Directive to return the tangible medium to the trader.
- = -
(23) Digital representations of value such as electronic vouchers or e-coupons are used by consumers to pay for different goods or services in the digital single market.
Such digital representations of value are becoming important in relation to the supply of digital_content or digital_services, and should therefore be considered as a method of payment within the meaning of this Directive.
Digital representations of value should also be understood to include virtual currencies, to the extent that they are recognised by national law.
Differentiation depending on the methods of payment could be a cause of discrimination and provide an unjustified incentive for businesses to move towards supplying digital_content or a digital_service against digital representations of value.
However, since digital representations of value have no other purpose than to serve as a method of payment, they themselves should not be considered digital_content or a digital_service within the meaning of this Directive.
- = -
(61) Where the trader has failed to supply the digital_content or digital_service, the consumer should call upon the trader to supply the digital_content or digital_service.
In such cases, the trader should act without undue delay, or within an additional period of time as expressly agreed to by the parties.
Considering that digital_content or a digital_service is supplied in digital form, the supply should not require, in the majority of situations, any additional time to make the digital_content or digital_service available to the consumer.
Therefore, in such cases, the obligation of the trader to supply the digital_content or digital_service without undue delay should mean having to supply it immediately.
If the trader then fails to supply the digital_content or digital_service, the consumer should be entitled to terminate the contract.
In specific circumstances, such as where it is clear that the trader will not supply the digital_content or digital_service or where a specific time for the supply is essential for the consumer, the consumer should be entitled to terminate the contract without first calling upon the trader to supply the digital_content or digital_service.
- = -
(68) Where the consumer terminates the contract, the trader should reimburse the price paid by the consumer.
However, there is a need to balance the legitimate interests of consumers and traders where the digital_content or digital_service is supplied over a period of time and the digital_content or digital_service was in conformity only for part of that period.
Therefore, upon termination, the consumer should only be entitled to the part of the price paid that corresponds and is in proportion to the length of time during which the digital_content or digital_service was not in conformity.
The consumer should also be entitled to any part of the price paid in advance for any period that would have remained after the contract was terminated.
- = -
(69) Where personal_data are provided by the consumer to the trader, the trader should comply with the obligations under Regulation (EU) 2016/679.
Such obligations should also be complied with in cases where the consumer pays a price and provides personal_data.
upon termination of the contract, the trader should also refrain from using any content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader.
Such content could include digital images, video and audio files and content created on mobile devices.
However, the trader should be entitled to continue to use the content provided or created by the consumer in cases where such content either has no utility outside the context of the digital_content or digital_service supplied by the trader, only relates to the consumer's activity, has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts, or has been generated jointly by the consumer and others, and other consumers can continue to make use of it.
- = -
(71) The consumer should be entitled to retrieve the content within a reasonable time, without hindrance from the trader, in a commonly used machine-readable format and free of charge, with the exception of costs generated by the consumer's own digital_environment, for instance the costs of a network connection as those costs are not specifically linked to the retrieval of the content.
However, the obligation of the trader to make available such content should not apply where the content only has utility within the context of using the digital_content or digital_service, or relates only to the consumer's activity when using the digital_content or digital_service or has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts.
In such cases, the content does not have significant practical use or interest for the consumer while taking into account also the interests of the trader.
Moreover, the obligation of the trader to make available to the consumer, upon termination of the contract, any content that is not personal_data and has been provided or created by the consumer should be without prejudice to the trader's right not to disclose certain content in accordance with applicable law.
- = -
(78) The lack of conformity of the digital_content or digital_service as supplied to the consumer is often due to one of the transactions in a chain that links the original designer to the final trader.
While the final trader should be liable towards the consumer in the event of a lack of conformity, it is important to ensure that the trader has appropriate rights vis-à-vis different persons in the chain of transactions in order to be able to cover the liability towards the consumer.
Such rights should be limited to commercial transactions and they should therefore not cover situations where the trader is liable towards the consumer for the lack of conformity of digital_content or a digital_service that is composed of or built upon software which was supplied without the payment of a price under a free and open-source licence by a person in previous links of the chain of transactions.
However, it should be for the Member States under their applicable national law to identify the persons in the chain of transactions against which the final trader can turn and the modalities and conditions of such actions.
- = -
(79) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual and data protection rights should be afforded the right to initiate proceedings to ensure that the national provisions transposing this Directive are applied, either before a court or before an administrative authority which is competent to decide upon complaints, or to initiate appropriate legal proceedings.
- = -