Protect Your Business
There are a various EUand UK laws and regulations affecting your use of BlueSnap services in connection with the online sale of goods and services.
The following summary is intended for guidance purposes only to help our BlueSnap merchants comply with such laws and regulations. It is not intended as legal guidance or comprehensive advice. As BlueSnap has a UK-based subsidiary serving the EU we are concentrating on the UK perspective in this outline.
There are various laws and regulations in the EU and UK that affect sales to end customers and add implied conditions relating to the goods sold or services provided, that are deemed to govern the terms of contract between merchants and their customers. These terms and conditions cannot be excluded.
The primary UK legislation is embodied in the Consumer Rights Act 2015.
The Act specifically covers contracts between trader and consumer for supply of digital content, in addition to goods and services. Digital content includes computer system software, mobile apps, textual media, video and audio material as well as mobile phone applications. The law also recognizes that some sales may include a mix of digital content, goods and/or services.
A trader is any person(s) or company acting for purposes relating to a trade, business, craft or profession, and includes charities, non-profits, governmental and local authorities.
A trader based outside the EU selling to consumers within the EU will be covered by such legislation.
A consumer is any person not acting for the purposes of a business. It is up to a trader to demonstrate that a person is not a consumer.
Under the Consumer Rights Act certain basic standards are applied to every transaction for the supply of digital content. The content supplied must be:
The standards also extend to content that is given free together with other paid elements of a transaction.
In the event of breach a consumer usually has the right of repair or replacement and price reduction. Other remedies may include a claim for damages, the right to a full refund or to enforce fulfillment of the contract.
As regards any pre-contractual information that is given by the trader, the provisions of the Consumer Contracts Regulations 2013 are also applicable (see below).
The 2015 Act applies the following standards to every contract for the supply of services:
If services are supplied together with goods, then the standards relating to goods will usually apply.
In the event of breach of contract the consumer is entitled to repeat performance or a price reduction.
Other remedies in addition to the legislation include the right to claim compensation or have remedial work carried out by another trader.
The following standards apply to transactions for the sale and supply of goods (including hire purchase, hire, part-exchange and contracts for works and materials):
If the contract is breached statutory remedies include the right to reject (usually up to 30 days), repair or replacement, and price reduction, in addition to other remedies such as a claim for compensation for losses that have occurred.
Additional legislation covers the use of misleading and aggressive selling practices, extension of protection to recipients where products are purchased as gifts and this was known to the trader.
If a trader fails to disclose that it is a limited company and there is a breach of contract then the consumer may be able to claim directly against the directors of the business as individuals.
The Consumer Rights Act 2015 updates past legislation dealing with unfair contract terms and notices relating to the exclusion and/or limitation of liability for consumer transactions.
Provisions that seek to exclude liability for death or personal injury caused by negligence are not to be used in consumer contracts and may give rise to enforcement action as unfair commercial practice by the Competition & Markets Authority or other regulatory bodies. Terms that seek to exclude liability for faulty or misdescribed goods or digital content are also nullified and may result in enforcement action. Exclusion of the statutory rights of a consumer is also forbidden.
Other terms of exclusion and limitation of liability will be generally subject to a test of fairness and transparency. A term is likely to be deemed unfair if it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. Contracts should be drawn up in a way that respects consumers’ legitimate interests.
Terms likely to be deemed unfair include:
These UK regulations came into force on 13 June 2014 and replace the Distance Selling Regulations 2000 and Doorstep Selling Regulations 2008. The new regulations enforce EU Consumer Rights Directive 2011. The regulations cover transactions between a trader and a consumer. The likelihood is that these provisions will be deemed to also cover foreign traders selling to UK consumers and well as UK merchants.
(These regulations are still in force and there is some overlap with the 2013 regulations set out above). The regulations relate to sales by Internet, mobile and email, and cover business and consumer transactions. They apply to a UK-based merchant whether servicing just UK or any other member state.
Merchants must disclose the following:
Online order forms should make it easy for users to correct and clear incorrect data.
Customers must be told the steps involved in completing an online contract prior to or at the start of the process.
The regulations apply to UK providers of charged services and to individuals or organizations in an EU country that use a relevant services. The regulations cover B2B and B2C services and relate primarily to the provision of information. The provisions are similar to the two previous sets of regulations.
Regulation 8(1) of the POS Regulations requires the following information be made available to all customers:
Some additional information has to also be provided if requested pricing, price estimate, reference to any professional rules applicable in the relevant EU state, any steps to be taken to avoid conflict of interest.
Such information is to be given or made available prior to contract and can be by digital means.
There are further regulations against discrimination due to place of residence.
The 2009 Regulations also require merchants to respond to consumer complaints as quickly as possible and to use best efforts to resolve such complaints.
This legislation will apply to merchants having a presence in the UK or collecting information onto UK-based servers. The Act lays down a number of principles of which the following are particularly relevant.
Merchants should note that the European Union is set to make significant reforms to the area of data protection through the General Data Protection Regulation due to come into effect in early 2018. Many businesses are already taking active preparations to be able to conform with the new Regulation which demands greater focus on data privacy.
The ADR directive and ODR regulation are covered in the UK by the Alternative Dispute Resolution for Consumer Disputes Regulations 2015 and the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015.
Businesses are required to inform consumers that they have the right to seek redress for unresolved complaints and disputes through certified Alternative Dispute Resolution schemes and the EU Online Dispute Resolution service.The free EU service that will be available for consumers to use as from February 15th, 2016 at the following address: http://ec.europa.eu/consumers/odr. This service is intended to help resolve disputes arising out of any purchases made either domestically or across EU state borders.