Regulation on Distance Contracts

REGULATION ON DISTANCE CONTRACTS

SECTION ONE

Purpose, Scope, Legal Basis and Definitions

Purpose

ARTICLE 1 – (1) The purpose of this Regulation is to regulate the implementing procedures and principles on distance contracts.

Scope

ARTICLE 2 – (1) This Regulation covers the distance contracts.

(2) The provisions of this Regulation shall not apply to contracts relating to;

a) Financial services,

b) Sales made by means of automatic vending machines,

c) The use of public payphones, concluded with telecommunications operators through use of such payphones,

ç) Services relating to betting, lotteries, sweepstakes, and similar games of chance,

d) The creation, acquisition or transfer of immovable property or of rights in immovable property,

e) Renting a house,

f) Package tours,

g) Timeshare, long-term holiday service, and their resale and exchange,

ğ) Delivery of foodstuffs, beverages or other goods intended for everyday consumption by seller to the house or workplace of consumer through by regular deliveries,

h) passenger transportation services provided that the obligation to information stipulated in (a), (b) and (d) sub-paragraphs of first paragraph of article 5 and obligations stipulated in articles 18 and 19 are reserved,

ı) assembly, maintenance and repair of goods,

i) social services for supporting families and individuals such as nursery home care services, childcare, elder care or patient care.

 

Legal Basis

ARTICLE 3 - (1) The legal basis for this Regulation is articles 48 and 84 of the Law No. 6502 of 7/11/2013 on Consumer Protection.

Definitions

ARTICLE 4 - (1) For the purpose of this Regulation;

a) 'Digital content' shall mean data made available in digital form; such as computer program, application, game, music, video and text,

b) 'Service' shall mean the subject matter of any kind of consumer related act performed or undertaken to be performed in return for a fee or interest, except for delivery of goods,

c) 'Durable media' shall mean any instrument such as text messages, electronic mails, internet, disk, CD, DVD, memory card, etc., which enables the consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored,

ç) 'Law' shall mean Law No. 6502 on Consumer Protection,

d) 'Goods' shall mean movable properties, immovable items for dwelling or for vacation, and all kinds of intangible items such as software, sound audio, display image, etc. prepared for use with electronic media that are the subject matter of purchase or sale,

e) 'Distance Contract' shall mean any contract concerning goods or services concluded between a provider and a consumer under an organized distance sales or service-provision scheme run by the provider, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded,

f) 'Provider'  shall mean any natural or legal person, including public legal persons, which provide services to the consumer for commercial or professional purposes, directly or acting on the name or account of the service provider,

g) 'Seller' shall mean any natural or legal person, including public legal persons, which provide goods to the consumer for commercial or professional purposes, directly or acting on the name or account of the provider of goods,

ğ) 'Consumer' shall mean any natural or legal person acting without any commercial or professional purpose,

h) 'Remote communication mean'  shall refer to any means such as postal mail, catalogue, telephone, fax machine, radio, television, electronic mail, text message, Internet, ATM, etc., which enable the conclusion of the contract between those parties without physically coming together.

ı) 'Ancillary contract' shall mean any additional contract concerning goods or services provided to the consumer by the seller, provider or a third party in addition to the goods and services being the subject of the distance contract.

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SECTION TWO

Prior Information Obligation

Prior Information

ARTICLE 5 - (1) Consumer must be informed by seller or provider on all of the following details before conclusion of a distance contract or consumer agrees on a proposal equivalent thereof.

a) the main features of the goods or services being contracted,

b) name or title, or, if any MERSIS number, of Seller or Provider

c) full address, phone number and similar contact details of the seller or provider, which enable consumer quickly contact seller or provider, and, if any, identity and address of the person acting in the name or on account of seller and provider, 

ç) if any, contact details other than those set forth sub-paragraph (c) of seller or provider for consumer to submit his/her compliant,  

d) the total price inclusive of all taxes of the good or service, or if it is impossible to calculate it in advance due to its nature, then the method of calculation of price, and, if any, all cargo, delivery and similar extra costs, and if it is impossible to calculate them beforehand, then the information that such extra costs may have to be paid,

e) such additional fees charged to consumer if it is impossible to calculate the fees of using remote communication means during conclusion of contract over the regular rates,   

f) information about payment, delivery, performance, and, if any, related commitments, and methods of seller or provider for resolution of complaints,

g) where right of withdrawal exists, the condition, period, and procedure for using this right, and carrier, as designated by seller, for product return,

ğ) full address, fax number or electronic mail address for delivery of the withdrawal notification,

h) where a right of withdrawal is not provided for in accordance with Article 15, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal,

ı) 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 seller or provider,

i) where applicable, technical protection measures that may affect the functionality of digital contents,

j) where applicable, any relevant interoperability of digital content with hardware and software that the seller or provider is aware of or can reasonably be expected to have been aware of,

k) information that in case of any dispute, consumers may apply to Consumer Court or Arbitration Committee.

(2) The information referred to in first paragraph shall form an integral part of the distance contract and may not be changed unless the contracting parties expressly agree otherwise.

(3) Should the seller or provider fail to perform its obligation to inform about additional charges as referred in sub-paragraph (d) of first paragraph, the consumer is not obliged to pay such charges.

(4) The total price referred to in sub-paragraph (d) of first paragraph shall include the total costs per every invoicing period in unlimited duration contracts, or limited duration subscription contracts.

(5) The contracts concluded via auction or Dutch auction may include information about auctioneer, instead of the information referred to sub-paragraphs (b), (c) and (d) of first paragraph.

(6) Burden of proof concerning the existence of prior information shall rest with the seller or provider.

Method for communicating prior information

ARTICLE 6 – (1) All matters stated under paragraph one of article 5 shall be communicated to the consumer by the seller or provider, either on paper or on durable medium, in a clear and comprehensible manner in any way appropriate to the means of communication used and by using at least twelve font size.

(2) If a distance contract to be concluded via Internet, the seller or the provider;

a) shall make the consumer aware in clear and prominent manner, right before the consumer enters into a commitment, of all information set forth in paragraphs (a), (d), (g), and (h) of article 5, provided that the information obligation stipulated in first paragraph of article 5 is reserved,

b) shall make the consumer aware in clear and prominent manner, right before the consumer places his order, of the information whether the delivery is subject to any restriction and possible means of payment.

 

(3) Where a distance contract is to be concluded by telephone, the seller or the provider shall make the consumer aware in clear and prominent manner, right before the consumer places his order, of the information provided for in subparagraphs (a), (d), (g) and (h) of first paragraph of the article 5; and shall submit the information referred to in first paragraph of article 5 in writing at the latest at the time of the delivery of the goods or before the performance of the service begins.

(4) If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the seller or the provider shall make the consumer aware in clear and prominent manner, right before the consumer places his order, of the information provided for in subparagraphs (a), (b), (d), (g) and (h) of first paragraph of the article 5; and shall submit the information referred to in first paragraph of article 5 in writing at the latest at the time of the delivery of the goods or before the performance of the service begins.

(5) If the contract is to be concluded through methods referred to in paragraphs 3 and 4 for sales of services which is performed right away, it is enough to make the consumer aware in a clear and prominent manner, right before the consumer places his order, of the information provided for in sub paragraphs (a), (b), (d) and (h) of first paragraph of Article 5.

Confirmation of Prior Information

ARTICLE 7 – (1) The seller or the provider shall make the consumer confirm that he has received prior information through methods referred to in article 6 in line with the distance communication mean used.  Otherwise the contract shall be deemed to have not been concluded.

Other liabilities with respect to prior information

ARTICLE 8 – (1) The seller or the provider shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. Otherwise the consumer shall not be bound with the order.

(2) If the seller or the provider makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call.

SECTION THREE

Right of Withdrawal and Liabilities of the Parties

Right of Withdrawal

ARTICLE 9 – (1) The consumer shall have a period of fourteen days to withdraw from a distance contract, without giving any reason, and without incurring any costs.

(2) The withdrawal period shall start on the day of the conclusion of the contract in the case of service contracts and on the day on which the consumer or a third party indicated by the consumer acquires physical possession of the goods in the case of sales contracts. However, the consumer may also have the right to withdraw within the period from the day of the conclusion of the contract to the day on which the goods are possessed.

(3) In the calculation of the period for the exercise of this right the following shall be taken as the basis:

a) in case of multiple goods ordered by the consumer in one order and delivered separately, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good,

b) in case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece,

c) in case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good.

 

(4) Delivery of the good from the seller to the carrier shall not be considered as delivery to the consumer.

(5) Withdrawal right provisions for goods shall prevail, in case the contract covers both goods and services.

Omission of information on the right of withdrawal

ARTICLE 10 – (1) The seller or the provider shall be obliged to prove that the consumer is informed on right of withdrawal. Should the consumer is not informed on the right of withdrawal in the due manner, the consumer shall not bound with the period of fourteen days to exercise this right. The withdrawal period shall expire one year from the end of the initial withdrawal period.

(2)  If consumer is provided with the information in question within one year, the withdrawal period shall expire fourteen days after the day upon which the consumer receives that information.

Exercise of the right of withdrawal

ARTICLE 11 – (1) Before the expiry of the withdrawal period, the consumer shall inform the seller or the provider of his decision to withdraw from the contract in writing or via durable media.

(2) the consumer may use the model withdrawal form provided in the ANNEX or make any other unequivocal statement setting out his decision to withdraw from the contract. The seller or the provider may give the option to the consumer to fill in and submit the form or the statement over Website.  Where consumers are provided with the right of withdrawal over Website, the seller or the provider shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.

(3) Where a distance contract is to be concluded by telephone, the seller or the provider shall send the form provided in the ANNEX to the consumer at the latest at the time of the delivery of the goods or before the performance of the service begins.  The consumer may use this form to exercise the right of withdrawal or may use the other method described in paragraph 2.

(4) The burden of proof of exercising the right of withdrawal in accordance with this Article shall be on the consumer.

Obligations of the seller or the provider

ARTICLE 12 – (1) The seller or the provider shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than fourteen days from the day on which he is informed of the consumer’s decision to withdraw from the contract.

(2) The seller or the provider shall carry out the reimbursement referred to in the first subparagraph at once using the same means of payment as the consumer used for the initial transaction and provided that the consumer does not incur any fees as a result of such reimbursement.

(3)  Under sub-paragraph (h) of first paragraph of Article 5, if the good is returned via the carrier indicated by the seller, the consumer may not be responsible for any costs of return. If the seller does not indicate any carrier in the prior information, he cannot request any payment from the consumer for the return. In the event that the carrier company does not have any office where the consumer lives, the seller shall be obliged to have the good to be collected from the consumer without asking any other cost.

Obligations of the consumer

ARTICLE 13 – (1) Unless the seller or the provider has offered to collect the goods himself, the consumer shall send back the goods or hand them over to the trader or to a person authorized by the seller or the provider to receive the goods, without undue delay and in any event not later than ten days from the day on which he has communicated his decision to withdraw from the contract.

(2) The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods.

Effects of the exercise of the right of withdrawal on ancillary contracts

ARTICLE 14 – (1) if the consumer exercises his right of withdrawal from a distance contract, provided that the provisions of Article 30 of the Law are reserved, any ancillary contracts shall be automatically terminated. The consumer shall not pay any costs, compensation or fees except for the cases referred to in second paragraph of article 13.

(2) Seller or the provider shall inform the third party, being one of the parties of the ancillary contract, immediately of the withdrawal of the contract by the consumer.

Exceptions to the right of withdrawal

ARTICLE 15 – (1) ) Unless the parties have agreed otherwise, the consumer may not exercise the right of withdrawal in respect of contracts:

a) for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the provider or seller,

b) for the supply of goods made to the consumer's specifications or clearly personalized.

c) for supply of goods that are liable to deteriorate or expire rapidly,

 

ç) for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.

d) for the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items.

e) for the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery

 

f) for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications.

g) for the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance.

 

ğ) for the services rendered right away via electronic medium or intangible goods delivered right away

 

h) for the services started to be given upon the consent of the consumer before the expiration of right of withdrawal period.

SECTION FOUR

Other Provisions

Performance of contract and delivery

ARTICLE 16 – (1) The seller or the provider shall fulfill its commitment as from the receipt of the order of the consumer without undue delay. In sales of goods, this period shall not be later than 30 days from the conclusion of the contract.

(2) If the seller or the provider fails to fulfil his obligation referred to in first paragraph, the consumer shall be entitled to terminate the contract.

(3) Upon termination of the contract, the seller or the provider shall, without undue delay, reimburse all sums paid under the contract within fourteen days as from the date of receipt of the termination notice, including legal interest to be calculated as per the article 1 of the Law No 3095 of 4 December 1984 on Interest and Default Interest. Furthermore, the seller or the provider shall return all negotiable instruments and papers that obligate the consumer to pay.

(4) Where the delivery of the goods or performance of the service becomes impossible, the seller or the provider shall inform the consumer in writing or via durable media in three days after the seller or the provider have access to this information, and shall return all costs collected including the delivery costs at the latest within fourteen days as from the date of the notice. Any good being out of stock shall not be considered as impossibility of delivery of goods.

Liability for damage

ARTICLE 17 – (1) Seller shall be responsible for the losses and damages that might occur until delivery of the goods to consumer, or a third person to be designated by consumer, such third person cannot be carrier.

(2) Where consumer requests goods to be delivered via a carrier other than that carrier designated by seller, then seller shall not be responsible for any potential losses or damages that might occur after delivery of the goods to relevant carrier.

Fees for phone communication

ARTICLE 18 – (1) Where the seller or the provider operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the seller or the provider, is not bound to pay more than the basic rate.

Additional payments

ARTICLE 19 – (1) Before conclusion of the contract, it is mandatory for seller or provider to seek the explicit and separate consent of the consumer on any additional payments to the original payment arising from the contractual obligations of and agreed upon by the consumer.

(2) Should consumer has made a payment because, without obtaining explicit consent of him/her, he/she has been presented with automatically checked options which have established additional payment obligation on consumer, then seller or provider is obliged to return these payments.

Storage of data and burden of proof

ARTICLE 20 − (1) The seller or the provider shall be obliged to store data and documents on the operations related to his obligations on the right of withdrawal, prior information, delivery and other obligations for a period of three years.

(2) Those, who act as an intermediary for the conclusion of a distance contract for financial services in the name of the provider under the system established by the use of or enabling the use of means of distance communication, shall be liable to store the records of the operations performed under this Regulation for a period of three years and present the same to the relevant agencies, organizations and the consumers upon demand.

(3) The seller or the provider shall be obliged to prove that the intangible goods or services delivered to the consumer via electronic media are free from defect.

SECTION FIVE

Miscellaneous and Final Provisions

Repealed regulation

ARTICLE 21 – (1) The Regulation No 27866 and of 6/3/2011 on Distance Contracts was repealed.

 

Effectiveness

Article 22 – (1) This Regulation shall come into force after three months from the date of its publication.

Enforcement

ARTICLE 23 – (1) The provisions of this Regulation shall be enforced by the Minister of Customs and Trade.

 

 

ANNEX

SAMPLE WITHDRAWAL FORM

 

(This form will be completed and sent when only the right of withdrawal from the contract is to be exercised.)

 

 
-To: (This part will be completed by the provider. Name, title, address, fax number, if any, and e-mail address of the seller or provider.)

 
-I hereby declare that I am exercising my right to withdraw from the contract concerning the provision of the below stated services.

-Date of order or date of delivery:

-Good or Service subject to the right of withdrawal:

-Price of the Good or Service subject to the right of withdrawal:

-Name and surname of the consumer:

-Address of the consumer:

-Signature of the consumer: (In case submitted only on paper)

-Date: