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(3) Subsections (5) to (7) apply where—

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(a) there is a contract to supply digital content, and

(b) after the trader (T) has supplied the digital content, the consumer is to
have access under the contract to a processing facility under
arrangements made by T.

(4) 5A processing facility is a facility by which T or another trader will receive
digital content from the consumer and transmit digital content to the consumer
(whether or not other features are to be included under the contract).

(5) The contract is to be treated as including a term that the processing facility
(with any feature that the facility is to include under the contract) must be
10available to the consumer for a reasonable time, unless a time is specified in the
contract.

(6) The following provisions apply to all digital content transmitted to the
consumer on each occasion under the facility, while it is provided under the
contract, as they apply to the digital content first supplied—

(a) 15section 34 (quality);

(b) section 35 (fitness for a particular purpose);

(c) section 36 (description).

(7) Breach of a term treated as included under subsection (5) has the same effect as
breach of a term treated as included under those sections (see section 42).

40 20Quality, fitness and description of content supplied subject to modifications

(1) Where under a contract a trader supplies digital content to a consumer subject
to the right of the trader or a third party to modify the digital content, the
following provisions apply in relation to the digital content as modified as they
apply in relation to the digital content as supplied under the contract—

(a) 25section 34 (quality);

(b) section 35 (fitness for a particular purpose);

(c) section 36 (description).

(2) A claim on the grounds that digital content does not conform to a term
described in any of those sections as applied by subsection (1) is to be treated
30as arising at the time when the digital content was supplied under the contract
and not the time when it is modified.

41 Trader’s right to supply digital content

(1) Every contract to supply digital content is to be treated as including a term—

(a) in relation to any digital content which is supplied under the contract
35and which the consumer has paid for, that the trader has the right to
supply that content to the consumer;

(b) in relation to any digital content which the trader agrees to supply
under the contract and which the consumer has paid for, that the trader
will have the right to supply it to the consumer at the time when it is to
40be supplied.

(2) See section 42 for a consumer’s rights if the trader is in breach of a term that
this section requires to be treated as included in a contract.

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What remedies are there if statutory rights under a digital content contract are not met?

42 Consumer’s rights to enforce terms about digital content

(1) In this section and sections 43 and 44 references to digital content conforming
to a contract are references to the digital content conforming to the terms
5described in sections 34, 35 and 36.

(2) If the digital content does not conform to the contract, the consumer’s rights
(and the provisions about them and when they are available) are—

(a) the right to repair or replacement (see section 43);

(b) the right to a price reduction (see section 44).

(3) 10Section 16 also applies if an item including the digital content is supplied.

(4) If the trader is in breach of a term that section 37 requires to be treated as
included in the contract, the consumer has the right to recover from the trader
the amount of any costs incurred by the consumer as a result of the breach, up
to the amount of the price paid for the digital content or for any facility within
15section 33(3) used by the consumer.

(5) If the trader is in breach of the term that section 41(1) (right to supply the
content) requires to be treated as included in the contract, the consumer has the
right to a refund (see section 45 for provisions about that right and when it is
available).

(6) 20This Chapter does not prevent the consumer seeking other remedies for a
breach of a term to which any of subsections (2), (4) or (5) applies, instead of or
in addition to a remedy referred to there (but not so as to recover twice for the
same loss).

(7) Those other remedies include any of the following that is open to the consumer
25in the circumstances—

(a) claiming damages;

(b) seeking to recover money paid where the consideration for payment of
the money has failed;

(c) seeking specific performance;

(d) 30seeking an order for specific implement;

(e) relying on the breach against a claim by the trader for the price.

(8) For the purposes of subsection (2), digital content which does not conform to
the contract at any time within the period of six months beginning with the day
on which it was supplied must be taken not to have conformed to the contract
35when it was supplied.

(9) Subsection (8) does not apply if—

(a) it is established that the digital content did conform to the contract
when it was supplied, or

(b) its application is incompatible with the nature of the digital content or
40with how it fails to conform to the contract.

43 Right to repair or replacement

(1) This section applies if the consumer has the right to repair or replacement.

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(2) If the consumer requires the trader to repair or replace the digital content, the
trader must—

(a) do so within a reasonable time and without significant inconvenience
to the consumer; and

(b) 5bear any necessary costs incurred in doing so (including in particular
the cost of any labour, materials or postage).

(3) The consumer cannot require the trader to repair or replace the digital content
if that remedy (the repair or the replacement)—

(a) is impossible, or

(b) 10is disproportionate compared to the other of those remedies.

(4) Either of those remedies is disproportionate compared to the other if it imposes
costs on the trader which, compared to those imposed by the other, are
unreasonable, taking into account—

(a) the value which the digital content would have if it conformed to the
15contract,

(b) the significance of the lack of conformity, and

(c) whether the other remedy could be effected without significant
inconvenience to the consumer.

(5) Any question as to what is a reasonable time or significant inconvenience is to
20be determined taking account of—

(a) the nature of the digital content, and

(b) the purpose for which the digital content was obtained or accessed.

(6) A consumer who requires or agrees to the repair of digital content cannot
require the trader to replace it without giving the trader a reasonable time to
25repair it (unless giving the trader that time would cause significant
inconvenience to the consumer).

(7) A consumer who requires or agrees to the replacement of digital content
cannot require the trader to repair it without giving the trader a reasonable
time to replace it (unless giving the trader that time would cause significant
30inconvenience to the consumer).

(8) In this Chapter, “repair” in relation to digital content that does not conform to
a contract, means making it conform.

44 Right to price reduction

(1) The right to a price reduction is the right to require the trader to reduce the
35price to the consumer by an appropriate amount (including the right to receive
a refund for anything already paid above the reduced amount).

(2) The amount of the reduction may, where appropriate, be the full amount of the
price.

(3) A consumer who has that right may only exercise it in one of these situations—

(a) 40because of section 43(3)(a) the consumer can require neither repair nor
replacement of the digital content, or

(b) the consumer has required the trader to repair or replace the digital
content, but the trader is in breach of the requirement of section 43(2)(a)
to do so within a reasonable time and without significant
45inconvenience to the consumer.

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(4) A refund under this section must be given without undue delay, and in any
event within 14 days beginning with the day on which the trader agrees that
the consumer is entitled to a refund.

(5) The trader must give the refund using the same means of payment as the
5consumer used to pay for the digital content, unless the consumer expressly
agrees otherwise.

(6) The trader must not impose any fee on the consumer in respect of the refund.

45 Right to a refund

(1) The right to a refund gives the consumer the right to receive a refund from the
10trader of all money paid by the consumer for the digital content (subject to
subsection (2)).

(2) If the breach giving the consumer the right to a refund affects only some of the
digital content supplied under the contract, the right to a refund does not
extend to any part of the price attributable to digital content that is not affected
15by the breach.

(3) A refund must be given without undue delay, and in any event within 14 days
beginning with the day on which the trader agrees that the consumer is entitled
to a refund.

(4) The trader must give the refund using the same means of payment as the
20consumer used to pay for the digital content, unless the consumer expressly
agrees otherwise.

(5) The trader must not impose any fee on the consumer in respect of the refund.

Compensation for damage to device or to other digital content

46 Remedy for damage to device or to other digital content

(1) 25This section applies if—

(a) a trader supplies digital content to a consumer under a contract,

(b) the digital content causes damage to a device or to other digital content,

(c) the device or digital content that is damaged belongs to the consumer,
and

(d) 30the damage is of a kind that would not have occurred if the trader had
exercised reasonable care and skill.

(2) If the consumer requires the trader to provide a remedy under this section, the
trader must either—

(a) repair the damage in accordance with subsection (3), or

(b) 35compensate the consumer for the damage with an appropriate
payment.

(3) To repair the damage in accordance with this subsection, the trader must—

(a) repair the damage within a reasonable time and without significant
inconvenience to the consumer, and

(b) 40bear any necessary costs incurred in repairing the damage (including in
particular the cost of any labour, materials or postage).

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(4) Any question as to what is a reasonable time or significant inconvenience is to
be determined taking account of—

(a) the nature of the device or digital content that is damaged, and

(b) the purpose for which it is used by the consumer.

(5) 5A compensation payment under this section must be made without undue
delay, and in any event within 14 days beginning with the day on which the
trader agrees that the consumer is entitled to the payment.

(6) The trader must not impose any fee on the consumer in respect of the payment.

(7) A consumer with a right to a remedy under this section may bring a claim in
10civil proceedings to enforce that right.

(8) The Limitation Act 1980 and the Limitation (Northern Ireland) Order 1989
apply to a claim under this section as if it were an action founded on simple
contract.

(9) The Prescription and Limitation (Scotland) Act 1973 applies to a right to a
15remedy under this section as if it were an obligation to which section 6 of that
Act applies.

Can a trader contract out of statutory rights and remedies under a digital content contract?

47 Liability that cannot be excluded or restricted

(1) A term of a contract to supply digital content is not binding on the consumer
20to the extent that it would exclude or restrict the trader’s liability arising under
any of these provisions—

(a) section 34 (digital content to be of satisfactory quality),

(b) section 35 (digital content to be fit for particular purpose),

(c) section 36 (digital content to be as described),

(d) 25section 41 (trader’s right to supply digital content), or

(e) section 46 (remedy for damage to device or to other digital content).

(2) That also means that a term of a contract to supply digital content is not
binding on the consumer to the extent that it would—

(a) exclude or restrict a right or remedy in respect of a liability under a
30provision listed in that subsection,

(b) make such a right or remedy or its enforcement subject to a restrictive
or onerous condition,

(c) allow a trader to put a person at a disadvantage as a result of pursuing
such a right or remedy, or

(d) 35exclude or restrict rules of evidence or procedure.

(3) The reference in subsection (1) to excluding or restricting a liability also
includes preventing an obligation or duty arising or limiting its extent.

(4) An agreement in writing to submit present or future differences to arbitration
is not to be regarded as excluding or restricting any liability for the purposes
40of this section.

(5) See Schedule 3 for provision about the enforcement of this section.

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