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How to prepare your shop for june 13th

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El próximo 13 de junio de 2014 entrará en vigor en España la nueva Ley nacional sobre los derechos de los consumidores,adaptada a la nueva Directiva comunitaria europea 2011/83. En el nuevo texto, el …

El próximo 13 de junio de 2014 entrará en vigor en España la nueva Ley nacional sobre los derechos de los consumidores,adaptada a la nueva Directiva comunitaria europea 2011/83. En el nuevo texto, el comercio electrónico, y más específicamente el derecho de desistimiento, también conocido como derecho de devolución o cancelación ha sido objeto de una profunda reforma. Además, se refuerzan los deberes de información y se introducen nuevos derechos.

El nuevo marco del derecho d e devolución va más allá de la mera ampliación del plazo de desistimiento de 7 días hábiles a 14 días naturales, se deben tener en cuenta muchos más factores que afectarán a todas las tiendas online españolas. La presente gúia reune una serie de recomendaciones al respecto.

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  • 1. Author: Naveen Aricatt Auditor & Legal Counsel UK Trusted Shops Cologne, March 2014 How to prepare your shop for June 13th Consumer Contracts Regulations
  • 2. How to prepare your shop for June 13th 2 Table of Contents 1. Introduction .........................................................................................3 2. Textual changes ..................................................................................3 2.1 Textual changes that you should implement now already ..................................7 2.1.1 Product description ................................................................................................................................7 2.1.2 Supplier identification .............................................................................................................................7 2.1.3 Delivery and payment ............................................................................................................................8 2.1.4 Product prices and delivery costs ..........................................................................................................9 2.1.5 Additional information for contracts of indeterminate duration or subscriptions ....................................9 2.1.6 Other information requirements, where applicable ..............................................................................10 2.1.7 Confirmation.........................................................................................................................................10 2.1.8 Right to cancel......................................................................................................................................11 3. Technical changes ............................................................................11 3.1 Order page and button..........................................................................................11 3.1.1 Order summary ....................................................................................................................................11 3.1.2 Order button .........................................................................................................................................12 3.1.3 Sample order summary page...............................................................................................................12 3.2 Additional charges ................................................................................................14 4. Procedural changes ..........................................................................14 4.1 Right to cancel.......................................................................................................14 4.2 Applicable terms ...................................................................................................14 5. Forecast ............................................................................................. 15
  • 3. How to prepare your shop for June 2014 3 1. Introduction On June 13, 2014 the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 will enter into force. These regulations implement the EU Directive on Consumer Rights which aims at harmonising some of the consumer protection legislation across the EU. There are quite some changes that online retailers need to be aware of and implement into their shop and processes. The new rules will be applicable to any contracts that are concluded in your online shop on or after June 13 th , therefore retailers need to start familiarising themselves with the new regulations now and make sure that their legal texts as well as the technicalities in the shop and the back office processes are ready to be put in place on June 13 th . To be prepared for the “d-day” we have compiled this paper. It outlines the changes that can be done now already and points out how you can prepare your shop for June 13 th . This paper is structured into three parts. Whereas the first part will look at the textual changes and when these could be prepared, the second part will look at the technical changes and the third part will give you an outlook on what you should keep in mind to adjust your internal procedures. The Consumer Contracts Regulations 2013) will replace the Distance Selling Regulations 2000 which con- tained most of the regulations relevant for online retailers. As such, they can be seen as the new regulations for distance selling. Like the DSRs the new regulations apply only to contracts concluded between consumers and traders and some kind of contracts are excluded from the scope, such as contracts for gambling, financial services or package travel contracts to mention some. 2. Textual changes One of the big blocks that are being harmonised are the information that online retailers „must give or make available to consumers” before they are bound by their online order. Consumers must know how to access the information and in an online shop this will usually mean that you should post the information on an appropriate page in your shop. Most information can be implemented into your general terms. Therefore you should carefully examine your terms and re-draft them. Make sure that you don’t just copy the terms of other websites but adjust them to your needs. If needed, get professional help for this. Practical advice: Avoid spreading the relevant information across too many pages. Especially, do not include them anywhere hidden in the FAQ. Most information is ideally placed on the product page or the general terms. Most of the information obligations are not new to retailers, as they were part of the Consumer Protection (Dis- tance Selling) Regulations 2000 or are still required by other relevant laws. The following table summarises the information obligations as required by the new regulations and suggests where these could ideally be posted. To understand the individual legal requirements in more detail continue reading section 2.1 and 2.2
  • 4. How to prepare your shop for June 13th 4 Information to be provided before making a dis- tance contract according to the new Consumer Contracts (Information, Cancellation and Addi- tional Charges) Regulation 2013 Can it be im- plemented now already? Suggested place to pro- vide the information (Where the law explicitly prescribes a place, it is marked in italic) Information on the supplier:  the identity of the trader (such as the trader’s trading name)  the geographical address at which the trader is established and, where available, the trader’s telephone number, fax number and e-mail address, to enable the consumer to contact the trader quickly and communicate efficiently;  where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;  if different from the address where the trader is established, the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical ad- dress of the place of business of that other trader, where the consumer can address any complaints; Yes Supplier identification section Either a separate page, a permanently available note in the footer or a section in the terms. Information on the product or service:  the main characteristics of the goods or services where applicable, the functionality, including applica- ble technical protection measures, of digital content;  where applicable, any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be ex- pected to have been aware of; Yes Product page AND "directly before the consumer places his order", i.e. the order summary Product page Product page Information on prices and costs:  the total price of the goods or services inclusive of taxes, or where the nature of the goods or ser- vices is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated,  where applicable, all additional delivery charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; Yes Product page AND "directly before the consumer places his order", i.e. the order summary At the latest "directly before the consumer places his order", i.e. the order sum- mary
  • 5. How to prepare your shop for June 2014 5  the cost of using the means of distance commu- nication for the conclusion of the contract where that cost is calculated other than at the basic rate; Next to relevant number Information on delivery and payment:  the arrangements for payment, delivery, perfor- mance, and the time by which the trader undertakes to deliver the goods or to perform the services;  any delivery restrictions  available payment methods Product page or terms "at the beginning of the or- dering process" Include the information in the terms or another infor- mation page like "Delivery & payment" or add the information into the shopping cart Information relevant for contracts of indetermi- nate duration or subscriptions:  the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;  the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for ter- minating the contract;  where applicable, the minimum duration of the consumer’s obligations under the contract; Product page Further information obligations:  where applicable, the trader’s complaint handling policy;  in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract  where applicable, the existence and the condi- tions of after-sale customer assistance, aftersales services and commercial guarantees;  the existence of relevant codes of conduct, as de- fined in regulation 5(3)(b) of the Consumer Protec- tion from Unfair Trading Regulations 2008, and how copies of them can be obtained, where applicable;  where applicable, the existence and the condi- tions of deposits or other financial guarantees to be paid or provided by the consumer at the re- quest of the trader; General terms and condi- tions
  • 6. How to prepare your shop for June 13th 6  where applicable, the possibility of having re- course to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it. Information on the right to cancel 1  where a right to cancel exists, the conditions, time limit and procedures for exercising that right  where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be re- turned by post, the cost of returning the goods;  that, if the consumer exercises the right to cancel after having made a request in accordance with regulation 36(1), the consumer is to be liable to pay the trader reasonable costs in accordance with regulation 36(4);  where there is no right to cancel or the right to cancel may be lost, the information that the con- sumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel; Yes Yes No Yes and no General terms and condi- tions General terms and condi- tions General terms and condi- tions Note: under the DSRs there are only cases where the right to cancel does not exist. About those cases you already have to inform under the current regime. The circumstances under which the consumer loses the right to cancel are effective from June 13th only and can therefore not be implemented now. 1 Remark: The right to cancel is changing remarkably. Some changes could be implemented now already, whereas others will be effective on June 13th only. In addition to the information obligations in connection withthe right to cancel you will need to get the consumer’s explicit consent in some cases. More information will follow in our next whitepaper on the right to cancel.
  • 7. How to prepare your shop for June 2014 7 2.1 Textual changes that you should implement now already 2.1.1 Product description  the main characteristics of the goods or services As consumers are not able to see and inspect the goods in person, they will need to rely on the product de- scription to compare and choose products. Make sure that you describe your goods or services as detailed as possible. It is standard to provide a product picture, but make sure it is visible and appropriate. Pay special attention to providing accurate and true infor- mation only. For those who sell digital content 2 :  the functionality, including applicable technical protection measures, of digital content;  any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of; If you sell digital content, check that you inform in the product description about the functionality, including applicable technical protection measures. Also make sure that you detail any relevant compatibility with hardware and software as far as you are aware of it. The new rule requires this from you and the criterion to judge this will be the questions as “to what extent could the trader be reasonably expected to be aware of any compatibility issues?” So, make sure that you in any case provide information on compatibility issues that you have been informed about or that are generally known. 2.1.2 Supplier identification  the identity of the trader (such as the trader’s trading name;)  the geographical address at which the trader is established and, where available, the trader’s telephone number, fax number and e-mail address, to enable the consumer to contact the trader quickly and com- municate efficiently;  where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;  if different from the address provided in accordance with paragraph (c), the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints; Make sure that you properly disclose your identity to your customers. This is the first step to clearly distinguish yourself from dubious online retailers. 2 Digital content is data, which is produced and supplied, in digital form. Downloads and streaming are qualified as digital content. If you however sell audio or video recordings on a tangible medium, it is qualified as goods.
  • 8. How to prepare your shop for June 13th 8 The identity of the trader requires the company name including the legal form, like Ltd. Sole traders need to give their full name. Remember to include the address at which you are established, as well as the contact details of how consumers can quickly and efficiently contact you. Note Other regulations like the E-commerce Regulations and the Companies (Trading Disclosure) Regulations are still in force. Accordingly, you compulsorily need to provide an email address as part of your contact de- tails. Remember in this context to include your place of registration and your registration number into the supplier identification, e.g.” registered in England and Wales, registration number 12345”. Where you are acting on behalf of another trader, you will need to give the geographical address of that trader to which the consumer can address any complaints. Practical advice All the above mentioned information could be gathered in a supplier identification section either in the terms, the footer or a separate „About us” page. For those who offer helpline phone numbers:  the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate; You are still allowed to provide a chargeable phone number and will need to inform the consumer about the additional cost other than the basic rate. However, if you offer a help line number for the purpose of consumer contacting you in relation to their con- tracts, you will need to provide a phone line that does not exceed the basic rate. If you currently offer only rev- enue sharing numbers (such as those starting with 084,0871,0872,0873) or premium rate numbers starting with the prefix 09 or helpline numbers starting with 0870 you will not comply with the requirement. Practical advice Check whether you offer another phone number at basic rates for customer queries in relation to an existing contract. If not, you will have to arrange for an additional new geographic number. 2.1.3 Delivery and payment  the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or to perform the services; Check that you inform the consumer about the delivery time and further arrangements for payment and deliv- ery, like which delivery options and services you offer. Providing delivery times on the product page is not nec- essarily required, but doing so might be the argument for your customers to buy from your shop rather than a competitor whose delivery times are given in the terms only and might even be longer than yours. New: Under the new regulations the information about delivery restrictions and the available payment methods need to be indicated “at the latest at the beginning of the ordering process”. Make sure that the information is indicated clearly and legibly.
  • 9. How to prepare your shop for June 2014 9 Practical advice: We recommend including a section about the payment methods that you offer to your customers into your shop. Alternatively you could include a separate information page “Payment methods” into your shop. Make sure that you indicate any delivery restriction such as where you intend to deliver only within the UK. This could be done by placing information like “We deliver only within the UK mainland” in the header, the terms or another information page like “Delivery”. Remember to limit the dropdown box in your ordering pro- cess accordingly to avoid contradictions and confusions. 2.1.4 Product prices and delivery costs  the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated,  where applicable, all additional delivery charges and any other costs or, where those charges cannot rea- sonably be calculated in advance, the fact that such additional charges may be payable; When dealing with consumers you need to provide prices including VAT. Check your website and ensure that prices are always given including VAT. It is not enough to display the prices on the product page excluding VAT and only adding the VAT in the shopping cart. Moreover, this could be seen as a misleading practice. The same applies to additional delivery charges and any other costs. Before the consumer submits his order any further charges or costs need to be shown. Remark Do not let yourself deceive by the expression “cannot reasonably be calculated in advance”, as from June onwards this will apply only to very rare exceptional cases. Under the current laws you already are required to display the total amount including VAT and all other charges and costs before the consumer submits his order. This thought is not going to change under the new regulations, which is why you should make sure that all applicable costs are displayed before the order is submitted. Charging additional costs after that is not permissible. 2.1.5 Additional information for contracts of indeterminate duration or subscriptions  the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;  the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;  the minimum duration of the consumer’s obligations under the contract; If you offer a subscription or a contract of indeterminate duration make sure that you inform about the total costs per billing period or the total monthly costs. To enhance trust in your online shop it is advisable to pay attention to your price display especially for such contracts.
  • 10. How to prepare your shop for June 13th 10 2.1.6 Other information requirements, where applicable  where applicable, the trader’s complaint handling policy;  in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;  where applicable, the existence and the conditions of after-sale customer assistance, aftersales services and commercial guarantees;  where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;  where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it. Selling goods online is usually a sales contract, therefore in all cases you will need to include a legal duty re- minder. Practical advice Include a term into your general terms that states that you are under the legal duty to supply goods that are in conformity with the contract.  the existence of relevant codes of conduct, as defined in regulation 5(3)(b) of the Consumer Protection from Unfair Trading Regulations 2008, and how copies of them can be obtained, where applicable; If you have obliged yourself to any code of conduct, remember to include information about your subscription to the code into your shop and make the consumer aware how he can obtain a copy of the code. This could be done by linking to the electronic version of that code of conduct. 2.1.7 Confirmation The E-Commerce Regulations demand that you acknowledge the receipt of any online order immediately. The new regulations require you to give all the above mentioned information as well as the information related to the right to cancel to the consumer in a confirmation of the contract on a durable medium. A durable medium cannot be a website, but paper or email will do. Practical advice: You could supply all the information in the first email that acknowledges the receipt of the order or in a sepa- rate email. However, make sure that the information is provided at the latest with delivery. If you provide services, ensure that the information are given to the consumer on a durable medium before the performance of the services has begun.
  • 11. How to prepare your shop for June 2014 11 2.1.8 Right to cancel Already today you need to inform the consumer about the existence of the right to cancel. The new regulations detail this information requirement. As the right to cancel will change considerably, we will deal with it in depth in another whitepaper. The right to cancel cannot fully be changed at this point, but with the help of our next whitepaper you can pre- pare your legal texts for June 13th. 3. Technical changes 3.1 Order page and button One aim of the harmonisation intended by the Consumer Rights Directive is to save consumers from entering into contracts for which they have not fully understood the conditions and are not aware when they enter into a contract that imposes a payment obligation on them. Therefore the new rules in regulation 14 set out specific criteria with regard to the content and design of the last page of the ordering process and in particular for the button which concludes the ordering process. 3.1.1 Order summary Do you currently summarise the order details before the consumer submits his order? If yes, then check whether you have included the following information on your order summary page.  the main characteristics of the goods or services;  the total price of the goods or services inclusive of taxes;  where applicable, all additional delivery charges and any other charges;  in the case of a contract of indeterminate duration or a contract containing a subscription, the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;  the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;  where applicable, the minimum duration of the consumer’s obligations under the contract; Most online retailers will need to comply only with the first three requirements, as the last three do not usually apply for retailers that sell goods online. Practical advice As a retailer you are under the duty to make the consumer aware of the above mentioned information in a clear and prominent manner, directly before he places his order. That is why you should compile this infor- mation on the ordering page which is the last step before placing the order. If you currently do not summarise the order or if you are missing some of the above mentioned information in your summary, start your preparations today. Designing the summary page or - in the worst case- creating a
  • 12. How to prepare your shop for June 13th 12 summary page might demand technical knowledge and in some cases also the help of your shop software provider. This might eat more time and resource than you think. 3.1.2 Order button Currently most order buttons are named „submit”, „submit order”, „order”, „order now” or similarly. Some even read „Pay” or only „continue” which does not at all give the impression that the order is being submitted. From June 13th onwards across the EU online retailers are obliged to ensure, that their consumers explicitly acknowledge that their order implies an obligation to pay. From then onwards the order buttons should read „order with obligation to pay”. You could also choose a corresponding unambiguous expression differing from this, but as it is not yet clear which formulations will meet the legal expectations, you should stick to this wording, where possible. 3.1.3 Sample order summary page We have designed a sample order summary page for your inspiration. Make sure that all the required infor- mation is arranged like this or similarly. You won’t have to wait until June 13th to get your order summary in place. This is something that you could do today itself, but at least you should start the preparations now. Remember If you fail to ensure that the consumer explicitly acknowledges that his order implies an obligation to pay, i.e. if you in your online shop fail to name the button correctly, the consumer will not be bound by his contract.
  • 13. How to prepare your shop for June 2014 13
  • 14. How to prepare your shop for June 13th 14 3.2 Additional charges Another aim of the regulations is to ban the practice of pre-ticked checkboxes for additional services with costs, such as packaging services or additional insurances. Of course you may still offer any services in addi- tion to the main obligation but make sure that you do not make the additional payment a default option. Pre-ticked boxes are probably the most used wrong-practice in these cases; however it will also apply to prac- tices where the consumer will have to tick a box if he does not wish the additional feature. Check the sites of your shop, especially the product pages and the ordering process for pre-ticket checkboxes and where necessary adjust the technicalities, so that no default option is set for additional services with costs. This may require the help of your service provider. Hence, make sure that you plan to verify this now and or- ganise the required action in due time before June 13th. Practical advice Check your online shop, especially the shopping cart and the ordering process. Where you offer any additional service to your consumer for an additional fee, make sure that it is added to the order only by means of a checkbox that the consumer himself has to tick. 4. Procedural changes 4.1 Right to cancel Surely you are aware that the cooling off period for the right to cancel is going to be extended from 7 working days to 14 calendar days. As indicated above in connection with the textual changes the right to cancel is go- ing to change significantly. This will require a good range of adjustments in your procedures and requires train- ing of your customer service and staff as well. For the changes related to the right to cancel wait for our next whitepaper. 4.2 Applicable terms The new regulations enter into force on June 13th. For any contract concluded on or after that day the new rules will apply. This however means that there will be a period where you will need to be aware of two differ- ent sets of terms. For contracts concluded on June 12th the cooling off period will be 7 working days only, but for a contract concluded on June 13th the cooling off period will be 14 calendar days. Therefore make sure that your team is sufficiently coached on the new changes and their impact on your procedures. Practical advice Make sure that you save a version of your general terms and any other legal information that become part of the contract. Pay attention to making the new changes in a new version.
  • 15. How to prepare your shop for June 2014 15 5. Forecast The Consumer Contracts Regulations will introduce some changes that will affect your front and back end as well as your process. However, there is no need to be scared. Till June 13th you have quite some time to pre- pare yourself and your shop and adjust to the new legislation. If you start your preparations now, the process will be pretty smooth. Most of the work you will need to do is connected to the right to cancel. Therefore, in our next whitepaper we will analyse the new changes in the area of the right to cancel in detail and point out which things you will need to consider.
  • 16. How to prepare your shop for June 13th 16 About the author Naveen Aricatt, LL.M is a postgraduate in Computer and Communications Law from Queen Mary University of London. In her function as Trusted Shops' legal counsel UK she is the expert responsible for the UK audit as well as legal matters in the UK. She joined the Trusted Shops’ team in 2009. After having conducted audits of german, french and english online shops, she now is responsible for UK au- dits. Furthermore, she co-authors the Trusted Shops handbook for online retailers which is regularly updated and writes about legal issues that are of relevance for online retailers in the Trusted Shops’ UK blog. About Trusted Shops Trusted Shops provides the leading online trustmark through a commitment of responsibility, buyer protection and customer reviews. Over 17,000 retail- ers in Europe trust the comprehensive Trusted Shops package. With the Trusted Shops trustmark, online retailers can demonstrate that their shop is committed to industry standards and the Trusted Shops Code of Conduct. In addition, Trusted Shops financially insures customers' purchases with the buyer protection guarantee. This increases customer confidence in the shop and their willingness to buy, which leads to more trust and more turnover for the retailer.

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