Jump to content

I need further confirmations when paying


Recommended Posts

I cannot find these phrases in the Deutsch (de-DE.xml v2.0.1) language file.

Please let us know what these phrases might be related to, and where they may be coming from.

"I have taken note of the right of withdrawal."
"I agree and would like to start downloading immediately before the end of the cancellation period. I am aware that I will lose my right of withdrawal once the download has started."
"I agree and expressly request that you start performing the commissioned service before the end of the cancellation period. I am aware that if you completely fulfill the contract, I lose my right of withdrawal."

Edited by bsmither
Link to comment
Share on other sites

I think these are phrases you want to have all of your customers agree to, such that, as you say, there will be no work performed or product delivered otherwise.

If you wish to strictly enforce this, perhaps adding these phrases to the "Terms & Conditions" document that all customers must have agreed to when making any purchase. Enforcing the reading of the T&C document is a standard Cubecart feature.

 

 

Link to comment
Share on other sites

Do you think it is important to log in the database the customer's acknowledgement of these stipulations for each order, or just to accept a general assumption that by checking some boxes at registration (similar to T&C), they have agreed across all orders now and in the future?

 

Link to comment
Share on other sites

To ensure that the customer does not cancel a download (article) and still uses it, the customer in Germany must expressly waive his right of revocation/cancellation if the download of the article has already begun or has been completed.

Translated with Google

 

 

 

https://www.it-recht-kanzlei.de/digitale-inhalte-widerruf.html#abschnitt_5

 

Expiration of the right of withdrawal
According to the prevailing opinion, there was no right of withdrawal for digital content before the amendment of the right of withdrawal, since data “due to their nature are not suitable for a return” (§ 312d Para. 4 No. 1 BGB old version).
Since the reform of the right of withdrawal in June 2014, the consumer also has a right of withdrawal for digital goods. However, the right of withdrawal can expire under the conditions of § 356 paragraph 5 BGB if the entrepreneur has started to perform the contract after the consumer

has expressly consented to the entrepreneur starting to perform the agreement before the end of the cooling-off period, and
has confirmed his knowledge that he loses his right of revocation through his consent at the beginning of the execution of the contract.
This means: Dealers can bring the right of cancellation according to § 356 Abs. 5 BGB for digital goods to lapse. However, the expiry of the right of withdrawal according to § 356 Para. 5 BGB requires that the retailer informs the consumer in detail that he loses his right of withdrawal if he wants to access the digital content. How can retailers meet this duty to provide information in practice?

1. Digital content only
First of all, it is crucial: According to § 356 Para. 5 BGB, the right of withdrawal can only expire for “digital content”. "Digital content" is "data that is produced and made available in digital form" (§ 312f Para. 3 BGB). Whether this data is completely downloaded, saved and then made visible or made visible in real time during the download (streaming) is irrelevant.

Examples of such digital content are:

computer programs (software)
Applications (apps)
games
music
videos
electronic texts (e-books)
audio books
Attention: It is essential that the data is not stored on a physical data medium (e.g. on a CD, Blu-Ray, etc.). Rather, the data must be sold "incorporeally", i.e. by downloading it from the Internet, by e-mail, etc. In the case of "embodied" data, the right of withdrawal cannot expire according to § 356 Para. 5 BGB.

2. Enlightenment through opt-in box
The retailer must be compelled by the consumer

obtain the express consent that he may start performing the contract (in practice, therefore, with the data transmission) before the end of the cooling-off period, and
obtain confirmation that the consumer waives the right of withdrawal with the corresponding performance of the contract.
The burden of proof lies with the dealer. This means: In the event of a dispute, the shop operator must prove that the consumer actually gave his consent to the start of the contract and his confirmation that he consciously waived the right of withdrawal.

The retailer's obligation to provide information can be implemented in practice by means of an opt-in checkbox, with which the customer confirms the above. This should not be pre-checked, but require an explicit action by the consumer. Obtaining consent within the terms and conditions is therefore not sufficient.

The query should be included in the order overview page. Only if the declaration in the opt-in box is ticked off should the order be successfully triggered. This means that the provider should only start executing the contract once all of the above requirements have been met.

Attention: According to § 312f Abs. 3 BGB, the consumer must also be informed after the conclusion of the contract about the exclusion of the right of withdrawal. Thereafter, the customer must be confirmed again after the order on a durable medium (e-mail, PDF, paper form) that

the trader starts to perform the contract before the end of the cooling-off period and
the customer consciously waives his right of withdrawal.
If such confirmation is not provided, it will be difficult for the trader to prove the consumer's confirmation and consent. The right of withdrawal does not then expire.

IV. Recommendation of the IT law office
Dealers who sell digital goods via their online shop should make sure that they effectively limit the right of withdrawal for consumers. To do this, they must follow the procedure standardized in Section 356, Paragraph 5 of the German Civil Code. This is the only way retailers can be sure that the right of withdrawal actually expires and that their shop does not degenerate into a free rental media library.

Link to comment
Share on other sites

So, this part suggests that the checked state of the checkboxes must be recorded with all other data in the Order Summary:

"This means: In the event of a dispute, the shop operator must prove (italics added) that the consumer actually gave his consent to the start of the contract and his confirmation that he consciously waived the right of withdrawal. [The opt-in checkbox] should not be pre-checked, but require an explicit action by the consumer. Obtaining consent within the [T&C document] is therefore not sufficient."

This, then, answers my question above.

However, this part has me wondering if there is something lost in translation:

"Thereafter, the customer must be confirmed (perhaps meant to say informed?) again after the order on a durable medium (e-mail, PDF, paper form) that the trader starts (started?) to perform the contract before the end of the cooling-off period and the customer consciously waives (waived?) his right of withdrawal."

Does this phrase mean the customer must again opt in using a durable medium, or does the phrase say the customer must be advised that they did previously acknowledge waiving their right?

Link to comment
Share on other sites

The customer must confirm his right of withdrawal when placing the order.

The waiver of revocation / cancellation remains if the download has not started.

Once the download has been started or completed, there is no longer any right to exchange or cancel the item.

 

With the order confirmation, the customer automatically receives the general terms and conditions, the notice of revocation and the information on data protection as a PDF attached.

This should not be sent with the invoice.

The invoice will not be issued until the customer has started the download.

This is how I set it up in the Gambio shop system

That's the rules in Germany.
I can't say whether it also applies to the EU, but this option is missing in CubeCart


Translated with Google

Edited by Andreas-aus-M
Link to comment
Share on other sites

  • 1 year later...
  • 5 months later...

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...