Consumer Rights Bill (HL Bill 52)

(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
of this section.

(5) Subsection (1)(i), and subsection (2) so far as it relates to liability under section
517, do not apply to a term of a contract for the hire of goods.

(6) But an express term of a contract for the hire of goods is not binding on the
consumer to the extent that it would exclude or restrict a term that section 17
requires to be treated as included in the contract, unless it is inconsistent with
that term (and see also section 62 (requirement for terms to be fair)).

(7) 10See Schedule 3 for provision about the enforcement of this section.

32 Contracts applying law of non-EEA State

(1) If—

(a) the law of a country or territory other than an EEA State is chosen by
the parties to be applicable to a sales contract, but

(b) 15the sales contract has a close connection with the United Kingdom,

this Chapter, except the provisions in subsection (2), applies despite that
choice.

(2) The exceptions are—

(a) sections 11(4) and (5) and 12;

(b) 20sections 28 and 29;

(c) section 31(1)(d), (j) and (k).

(3) For cases where those provisions apply, or where the law applicable has not
been chosen or the law of an EEA State is chosen, see Regulation (EC) No. 593/
2008 of the European Parliament and of the Council of 17 June 2008 on the law
25applicable to contractual obligations.

CHAPTER 3 Digital content

What digital content contracts are covered?

33 Contracts covered by this Chapter

(1) This Chapter applies to a contract for a trader to supply digital content to a
30consumer, if it is supplied or to be supplied for a price paid by the consumer.

(2) This Chapter also applies to a contract for a trader to supply digital content to
a consumer, if—

(a) it is supplied free with goods or services or other digital content for
which the consumer pays a price, and

(b) 35it is not generally available to consumers unless they have paid a price
for it or for goods or services or other digital content.

(3) The references in subsections (1) and (2) to the consumer paying a price include
references to the consumer using, by way of payment, any facility for which
money has been paid.

(4) A trader does not supply digital content to a consumer for the purposes of this
Part merely because the trader supplies a service by which digital content
reaches the consumer.

(5) The Secretary of State may by order provide for this Chapter to apply to other
5contracts for a trader to supply digital content to a consumer, if the Secretary
of State is satisfied that it is appropriate to do so because of significant
detriment caused to consumers under contracts of the kind to which the order
relates.

(6) An order under subsection (5)—

(a) 10may, in particular, amend this Act;

(b) may contain transitional or transitory provision or savings.

(7) A contract to which this Chapter applies is referred to in this Part as a “contract
to supply digital content”.

(8) This section, other than subsection (4), does not limit the application of section
1546.

(9) The power to make an order under subsection (5) is exercisable by statutory
instrument.

(10) No order may be made under subsection (5) unless a draft of the statutory
instrument containing it has been laid before, and approved by a resolution of,
20each House of Parliament.

What statutory rights are there under a digital content contract?

34 Digital content to be of satisfactory quality

(1) Every contract to supply digital content is to be treated as including a term that
the quality of the digital content is satisfactory.

(2) 25The quality of digital content is satisfactory if it meets the standard that a
reasonable person would consider satisfactory, taking account of—

(a) any description of the digital content,

(b) the price mentioned in section 33(1) or (2)(b) (if relevant), and

(c) all the other relevant circumstances (see subsection (5)).

(3) 30The quality of digital content includes its state and condition; and the
following aspects (among others) are in appropriate cases aspects of the quality
of digital content—

(a) fitness for all the purposes for which digital content of that kind is
usually supplied;

(b) 35freedom from minor defects;

(c) safety;

(d) durability.

(4) The term mentioned in subsection (1) does not cover anything which makes the
quality of the digital content unsatisfactory—

(a) 40which is specifically drawn to the consumer’s attention before the
contract is made,

(b) where the consumer examines the digital content before the contract is
made, which that examination ought to reveal, or

(c) where the consumer examines a trial version before the contract is
made, which would have been apparent on a reasonable examination
of the trial version.

(5) The relevant circumstances mentioned in subsection (2)(c) include any public
5statement about the specific characteristics of the digital content made by the
trader, the producer or any representative of the trader or the producer.

(6) That includes, in particular, any public statement made in advertising or
labelling.

(7) But a public statement is not a relevant circumstance for the purposes of
10subsection (2)(c) if the trader shows that—

(a) when the contract was made, the trader was not, and could not
reasonably have been, aware of the statement,

(b) before the contract was made, the statement had been publicly
withdrawn or, to the extent that it contained anything which was
15incorrect or misleading, it had been publicly corrected, or

(c) the consumer’s decision to contract for the digital content could not
have been influenced by the statement.

(8) In a contract to supply digital content a term about the quality of the digital
content may be treated as included as a matter of custom.

(9) 20See 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.

35 Digital content to be fit for particular purpose

(1) Subsection (3) applies to a contract to supply digital content if before the
contract is made the consumer makes known to the trader (expressly or by
25implication) any particular purpose for which the consumer is contracting for
the digital content.

(2) Subsection (3) also applies to a contract to supply digital content if—

(a) the digital content was previously sold by a credit-broker to the trader,

(b) the consideration or part of it is a sum payable by instalments, and

(c) 30before the contract is made, the consumer makes known to the credit-
broker (expressly or by implication) any particular purpose for which
the consumer is contracting for the digital content.

(3) The contract is to be treated as including a term that the digital content is
reasonably fit for that purpose, whether or not that is a purpose for which
35digital content of that kind is usually supplied.

(4) Subsection (3) does not apply if the circumstances show that the consumer
does not rely, or it is unreasonable for the consumer to rely, on the skill or
judgment of the trader or credit-broker.

(5) A contract to supply digital content may be treated as making provision about
40the fitness of the digital content for a particular purpose as a matter of custom.

(6) 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.

36 Digital content to be as described

(1) Every contract to supply digital content is to be treated as including a term that
the digital content will match any description of it given by the trader to the
consumer.

(2) 5Where the consumer examines a trial version before the contract is made, it is
not sufficient that the digital content matches (or is better than) the trial version
if the digital content does not also match any description of it given by the
trader to the consumer.

(3) Any information that is provided by the trader about the digital content that is
10information mentioned in paragraph (a), (j) or (k) of Schedule 1 or paragraph
(a), (v) or (w) of Schedule 2 (main characteristics, functionality and
compatibility) to the Consumer Contracts (Information, Cancellation and
Additional Charges) Regulations 2013 (SI 2013/3134SI 2013/3134) is to be treated as
included as a term of the contract.

(4) 15A change to any of that information, made before entering into the contract or
later, is not effective unless expressly agreed between the consumer and the
trader.

(5) 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.

37 20Other pre-contract information included in contract

(1) This section applies to any contract to supply digital content.

(2) Where regulation 9, 10 or 13 of the Consumer Contracts (Information,
Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134SI 2013/3134)
required the trader to provide information to the consumer before the contract
25became binding, any of that information that was provided by the trader other
than information about the digital content and mentioned in paragraph (a), (j)
or (k) of Schedule 1 or paragraph (a), (v) or (w) of Schedule 2 to the Regulations
(main characteristics, functionality and compatibility) is to be treated as
included as a term of the contract.

(3) 30A change to any of that information, made before entering into the contract or
later, is not effective unless expressly agreed between the consumer and the
trader.

(4) 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.

38 35No other requirement to treat term about quality or fitness as included

(1) Except as provided by sections 34 and 35, a contract to supply digital content
is not to be treated as including any term about the quality of the digital content
or its fitness for any particular purpose, unless the term is expressly included
in the contract.

(2) 40Subsection (1) is subject to provision made by any other enactment, whenever
passed or made.

39 Supply by transmission and facilities for continued transmission

(1) Subsection (2) applies where there is a contract to supply digital content and
the consumer’s access to the content on a device requires its transmission to the
device under arrangements initiated by the trader.

(2) 5For the purposes of this Chapter, the digital content is supplied—

(a) when the content reaches the device, or

(b) if earlier, when the content reaches another trader chosen by the
consumer to supply, under a contract with the consumer, a service by
which digital content reaches the device.

(3) 10Subsections (5) to (7) apply where—

(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) 15A 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
20available 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) 25section 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 30Quality, 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) 35section 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
40as 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
and 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
5under 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
be 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.

10What 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
described in sections 34, 35 and 36.

(2) 15If 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) Section 16 also applies if an item including the digital content is supplied.

(4) 20If 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
section 33(3) used by the consumer.

(5) 25If 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) This Chapter does not prevent the consumer seeking other remedies for a
30breach 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
in the circumstances—

(a) 35claiming damages;

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

(c) seeking specific performance;

(d) seeking an order for specific implement;

(e) 40relying on the breach against a claim by the trader for the price.

(8) It is not open to the consumer to treat the contract as at an end for breach of a
term to which any of subsections (2), (4) or (5) applies.

(9) 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
when it was supplied.

(10) Subsection (9) does not apply if—

(a) it is established that the digital content did conform to the contract
5when it was supplied, or

(b) its application is incompatible with the nature of the digital content or
with 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.

(2) 10If 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) bear any necessary costs incurred in doing so (including in particular
15the 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) is disproportionate compared to the other of those remedies.

(4) 20Either 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
contract,

(b) 25the 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
be determined taking account of—

(a) 30the 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
repair it (unless giving the trader that time would cause significant
35inconvenience 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
inconvenience to the consumer).

(8) 40In 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
price to the consumer by an appropriate amount (including the right to receive
a refund for anything already paid above the reduced amount).

(2) 5The 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) because of section 43(3)(a) the consumer can require neither repair nor
replacement of the digital content, or

(b) 10the 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
inconvenience to the consumer.

(4) A refund under this section must be given without undue delay, and in any
15event 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
consumer used to pay for the digital content, unless the consumer expressly
agrees otherwise.

(6) 20The 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
trader of all money paid by the consumer for the digital content (subject to
subsection (2)).

(2) 25If 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
by the breach.

(3) A refund must be given without undue delay, and in any event within 14 days
30beginning 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
consumer used to pay for the digital content, unless the consumer expressly
agrees otherwise.

(5) 35The 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) This section applies if—

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

(b) 40the 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) the 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) 5repair the damage in accordance with subsection (3), or

(b) compensate 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
10inconvenience to the consumer, and

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

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

(a) 15the nature of the device or digital content that is damaged, and

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

(5) A 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) 20The 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
civil 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
25contract.

(9) The Prescription and Limitation (Scotland) Act 1973 applies to a right to a
remedy 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 30Liability that cannot be excluded or restricted

(1) A term of a contract to supply digital content is not binding on the consumer
to 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) 35section 35 (digital content to be fit for particular purpose),

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

(d) section 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
40binding on the consumer to the extent that it would—

(a) exclude or restrict a right or remedy in respect of a liability under a
provision 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) 5exclude 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
10of this section.

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

CHAPTER 4 Services

What services contracts are covered?

48 Contracts covered by this Chapter

(1) 15This Chapter applies to a contract for a trader to supply a service to a
consumer.

(2) That does not include a contract of employment or apprenticeship.

(3) In relation to Scotland, this Chapter does not apply to a gratuitous contract.

(4) A contract to which this Chapter applies is referred to in this Part as a “contract
20to supply a service”.

(5) The Secretary of State may by order made by statutory instrument provide that
a provision of this Chapter does not apply in relation to a service of a
description specified in the order.

(6) The power in subsection (5) includes power to provide that a provision of this
25Chapter does not apply in relation to a service of a description specified in the
order in the circumstances so specified.

(7) An order under subsection (5) may contain transitional or transitory provision
or savings.

(8) No order may be made under subsection (5) unless a draft of the statutory
30instrument containing it has been laid before, and approved by a resolution of,
each House of Parliament.

What statutory rights are there under a services contract?

49 Service to be performed with reasonable care and skill

(1) Every contract to supply a service is to be treated as including a term that the
35trader must perform the service with reasonable care and skill.

(2) See section 54 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.