Legal issues on trading

Having just had my proverbials chewed off for commenting about someones site in public ( in retrospect this should not have been done) I thought I would post some details on legal issues relevent to trading on line - the one most people fall foul of after terms and conditions is DSR's or Distance Selling regulations
I have highlighted some points that a lot of people fail to cater for.

Many thanks to Waterfront Solicitors LLP for this information

Distance Selling Regulations
Applicability

The Distance Selling Regulations apply to 'distance contracts'. This means contracts with consumers concluded without any face to face interaction (such as over the internet or the telephone).
Exceptions to the Distance Selling Regulations

The Distance Selling Regulations do not apply to certain types of services offered under distance contracts, such as the provision of financial services, the sale of land, vending machines, public pay phones and auctions
Partial Exemptions from the Distance Selling Regulations

Many of the provisions of the Distance Selling Regulations do not apply to:

* accommodation services - for example hotel accommodation
* transport - for example air or rail tickets
* leisure services - for example theatre or concert tickets
* catering services

where the services are to be provided on a specific date or within a specific period.
The Requirements under the Distance Selling Regulations
'Information Requirements' prior to conclusion of a contract

Before the conclusion of a contract the supplier must provide to the consumer with:

* details of the supplier's identity and address;
* a description of the goods or services;
* the price including all taxes;
* delivery costs (if applicable);
* times for payment, delivery and performance;
* a notification of the consumer's right to cancel (if applicable - see below);
* the period for which the price and offer remains valid;
* if applicable, the minimum duration of the contract e.g. in relation to goods or services to be supplied recurrently; and
* must inform the consumer if he proposes to substitute goods or service for ones of equivalent quality and price in the event that those ordered are unavailable; and
* must inform the consumer that the cost of returning any substitute goods or services in the event of cancellation shall be met by the supplier.

In relation to telephone transactions, the identity of the supplier and the commercial purpose must be made clear at the beginning of the conversation with the consumer.
'Information Requirements' after conclusion of a contract

If the information listed above has not already been provided to the consumer in writing or another durable form then the supplier must 'in good time' and no later than during the performance of the contract (in relation to services) or the time of delivery (in relation to goods) provide them in such a form.

The supplier must also provide to the consumer in writing, or another durable medium which is available to the consumer:

* information regarding the consumer's right to cancel the contract (as detailed below),
* information regarding who would be responsible for costs of returning or recovery goods;
* a geographical address to which any complaints should be addressed;
* the conditions for exercising any contractual right to cancel a contract, where the contract is of an unspecified duration or of a duration of over one year; and
* information about any after-sales services or guarantees

In relation to the supply of services, where applicable, the supplier should also inform the consumer that they will not be able to cancel the contract once performance of the services has begun.
Time for performance of the contract

If no time for the performance of services is agreed, the supplier should perform the contract with 30 days from the day after the order was submitted.

If the supplier is unable to do so he should normally inform the consumer before performance is due and reimburse any sums received. Such a reimbursement should be made within 30 days of the end of period in which performance was due.
Consumer rights to cancel a distance contract under the Distance Selling Regulations ("the cooling off period")

The Distance Selling Regulations provide that, unless certain exemptions apply, a consumer has a right to cancel a distnance contract by notifying the supplier. The effect of serving such a notice is that the contract shall be treated as if it had not been made.
Cancellation period for contracts for the supply of goods

If the supplier has complied with the Information Requirements set out above, a consumer may cancel the contract during the seven working days after the day on which the consumer receives the goods.

If the Information Requirements have not been met within a period of three months, the cancellation period will end three months and seven working days after the receipt of the goods, so failure to comply with the Information Requirements can be risky for your business.

If the Information Requirements are complied with late but within three months, the cancellation period will expire seven working days after the day on which the information is received.
Cancellation period for contracts for the supply of services

In relation to the supply of services, the cancellation period begins on the day that the contract is concluded.

If the supplier has met the Information Requirements or provides the required information within three months of the conclusion of the contract, the period continues for seven working days after the day on which the consumer receives the information.

In the event that the information is not provided within three months, the cancellation period shall continue for three months and seven working days beginning on the day after the contract is concluded.
Exceptions to the rights to cancel

Unless the parties have agreed otherwise (in the contract) the consumer will lose their right to cancel a contract if:

* the supplier of a service has met the Information Requirements and the performance of the service has begun with the consumer's agreement
* the price of the goods or services is dependant on fluctuations in the financial market which cannot be controlled by the supplier
* bespoke goods are to be provided or if the goods cannot be returned or are liable to deteriorate or expire
* audio/video recordings or software are unsealed by the consumer
* the contract is for the supply of newspapers, magazines or other periodicals
* the contract is for gaming, betting or lottery services

What happens if a consumer cancels a distance contract?
Refunds

If a consumer cancels a distance contract, the supplier must usually reimburse any sum paid free from any charge.

Such a reimbursement should be made as soon as possible and in any event within 30 days of the day on which the notice of cancellation was given. In practice, this will usually mean re-crediting the consumer's credit card account.

If a separate charge for delivery was paid, this too must be returned unless the charge was provided under a separate contract.
Duties of the consumer

The consumer is obliged to retain possession of the goods and to take reasonable care of them. There is also a duty on the consumer to 'restore' the goods to the supplier, but under the meaning of the Distance Selling Regulations this can be achieved simply by making the goods available for collection by the supplier.

However, it is possible to contract that the goods must be returned by the consumer on cancellation and that they do so their own expense. If the consumer then fails to return such goods at their own expense, then the supplier may make a charge for the direct costs of recovering the goods.
Complaints and enforcement

The enforcement authorities (typically the Office of Fair Trading and Local Authority Trading Standard Departments) must consider all complaints they receive relating to a breach of the Distance Selling Regulations, unless the complaint appears to be frivolous or vexatious.

If a complaint is seen as valid, the authorities may apply for an injunction to secure compliance with the regulations. A court may then grant an injunction on such terms as it sees fit.