Royal Legislative Decree 1/2017

Article 68. Content and regime of the right of withdrawal. 1. The right of withdrawal from a contract is the power of the consumer and user to cancel the contract concluded, notifying the other contracting party within the period established for the exercise of that right, without the need to justify their decision and without penalty of any kind. The clauses that impose a penalty on the consumer and user for exercising their right of withdrawal shall be null and void. 2. The consumer shall have the right to withdraw from the contract in the cases provided by law or regulation and when so recognized in the offer, promotion, advertising or in the contract itself. 3. The right of withdrawal legally attributed to the consumer and user shall be governed in the first instance by the legal provisions that establish it in each case and in its absence by the provisions of this Title.

Article 69. Obligation to inform about the right of withdrawal. 1. When the law attributes the right of withdrawal to the consumer and user, the contracting entrepreneur shall inform him in writing in the contract document, in a clear, understandable and precise manner, of the right to withdraw from the contract and the requirements and consequences of its exercise, including the modalities of restitution of the good or service received. He shall also deliver a document of withdrawal, clearly identified as such, expressing the name and address of the person to whom it should be sent and the identification data of the contract and of the contracting parties to whom it refers. 2. It is up to the entrepreneur to prove compliance with the provisions of the preceding paragraph.

Article 70. Formalities for the exercise of the withdrawal. The exercise of the right of withdrawal shall not be subject to any formality, being sufficient that it is credited in any form admitted in law. In any case it will be considered validly exercised by sending the withdrawal document or by returning the products received.

Article 71. Time limit for exercising the right of withdrawal. 1. The consumer and user shall have a minimum period of fourteen calendar days to exercise the right of withdrawal. Provided that the employer has complied with the duty of information and documentation set out in Article 69.1, the period referred to in the preceding paragraph shall be calculated from receipt of the goods covered by the contract or from the conclusion of the contract if the object of the contract was the provision of services. 3. If the entrepreneur had not complied with the duty of information and documentation on the right of withdrawal, the period for its exercise shall end twelve months after the date of expiry of the initial withdrawal period, counting from the time the contracted good was delivered or the contract had been concluded, if the object of the contract was the provision of services. If the duty of information and documentation is fulfilled during the aforementioned period of twelve months, the period legally provided for the exercise of the right of withdrawal shall begin to run from that time. 4. To determine the observance of the withdrawal period, the date of issue of the declaration of withdrawal shall be taken into account.

Article 72. Proof of the exercise of the right of withdrawal. It is for the consumer and user to prove that you have exercised your right of withdrawal in accordance with the provisions of this chapter.

Article 73. Costs associated with the withdrawal. The exercise of the right of withdrawal shall not involve any cost to the consumer and user. For these purposes it shall be deemed place of performance the place where the consumer and user has received the service.

Article 74. Consequences of the exercise of the right of withdrawal. 1. Exercised the right of withdrawal, the parties must reciprocally restitute the benefits in accordance with the provisions of Articles 1.303 and 1.308 of the Civil Code. 2. The consumer and user will not have to reimburse any amount for the decrease in value of the good, which is a consequence of its use as agreed or its nature, or the use of the service. 3. The consumer and user shall be entitled to reimbursement of the necessary and useful expenses incurred on the good. 4. In the event that the user fails to comply with the commitment of permanence acquired with the company, the penalty for cancellation, or premature termination of the contractual relationship, will be proportional to the number of non-effective days of the agreed commitment of permanence.

Impossibility of returning the service by the consumer and user. 1. The impossibility of returning the provision subject of the contract by the consumer and user by loss, destruction or other cause shall not deprive it of the possibility of exercising the right of withdrawal. In these cases, when the impossibility of return is attributable to him, the consumer and user will respond to the market value that would have had the provision at the time of exercising the right of withdrawal, unless that value is higher than the purchase price, in which case it will respond to it. When the entrepreneur had failed to comply with the duty of information and documentation on the right of withdrawal, the impossibility of return will only be attributable to the consumer and user when he had omitted the diligence that is required in their own affairs.

Article 76. Return of sums received by the entrepreneur. When the consumer and user has exercised the right of withdrawal, the entrepreneur shall be obliged to return the sums paid by the consumer and user without retention of costs. The refund of these sums must be made without undue delay and, in any case, before 14 calendar days have elapsed from the date on which it has been informed of the decision to withdraw from the contract by the consumer and user. Once this period has elapsed without the consumer and user having recovered the sum due, he will be entitled to claim it doubled, without prejudice to compensation for damages that have been caused in excess of that amount. The employer shall bear the burden of proof of compliance with the time limit.

Article 76 bis. Effects of the exercise of the right of withdrawal in supplementary contracts. 1. Without prejudice to the provisions of Article 29 of Law 16/2011 of June 24, of consumer credit contracts, the exercise by the consumer and user of their right of withdrawal in accordance with the provisions of this law, shall have the effect of automatic termination at no cost to the consumer and user of any supplementary contract, except in those cases where they are complementary to contracts concluded at a distance or outside the establishment in which, without prejudice to its automatic termination, the consumer and user must bear the costs provided in Articles 107.2 and 108 of this rule. 2. Exercised the right of withdrawal on the main contract, the parties must reciprocally return the benefits received under the complementary contract, without undue delay and, in any case, before 14 calendar days have elapsed from the date on which the consumer and user has informed the entrepreneur of his decision to withdraw from the main contract. In the event that the entrepreneur does not reimburse all the amounts paid under the supplementary contract within the specified period, the consumer and user may claim to be paid double the amount due, without prejudice to its right to be compensated for damages suffered in excess of that amount. The burden of proof of compliance with the time limit shall be borne by the entrepreneur. The consumer and user shall be entitled to reimbursement of the necessary and useful expenses incurred on the good. 3. In the event that the consumer and user is unable to return the service object of the complementary contract due to loss, destruction or other cause attributable to him, he shall be liable for the market value that the service would have had at the time of the exercise of the right of withdrawal, unless such value is higher than the purchase price, in which case he shall be liable for the latter. 4. When the entrepreneur had breached the duty of information and documentation on the right of withdrawal of the main contract, the impossibility of return will only be attributable to the consumer and user when he had omitted the diligence that is required in their own affairs. 5. The provisions of the preceding paragraphs shall also apply to contracts that are complementary to other contracts concluded at a distance or outside the establishment, regulated in Title III of Book II of this law.

Article 77. Withdrawal of a contract linked to consumer and user financing. When the right of withdrawal is exercised in contracts concluded between an entrepreneur and a consumer and user, including distance contracts and those concluded outside the business premises of the entrepreneur, and the price to be paid by the consumer and user has been fully or partially financed by a credit granted by the contracting entrepreneur or by a third party, after agreement of the latter with the contracting entrepreneur, the exercise of the right of withdrawal shall imply at the time the resolution of credit without penalty to the consumer and user.

Article 78. Actions for nullity or termination. Failure to exercise the right of withdrawal within the established term shall not be an obstacle to the subsequent exercise of the actions of nullity or termination of the contract when they proceed according to law.

Article 79. Contractual right of withdrawal. In the absence of specific provisions in the offer, promotion, advertising or in the contract itself the contractually recognized right of withdrawal, this shall be in accordance with the provisions of this title. The consumer and user who exercises the contractually recognized right of withdrawal shall in no case be obliged to compensate for wear or deterioration of the good or the use of the service due solely to its testing to make a decision on its final acquisition. In no case may the employer require advance payment or provision of guarantees, including the acceptance of effects that guarantee a possible compensation in their favor in the event that the right of withdrawal is exercised.

Article 80. Requirements for non-individually negotiated clauses. 1. In contracts with consumers and users that use non-individually negotiated clauses, including those promoted by public administrations and the entities and companies that depend on them, they must meet the following requirements: a) Concreteness, clarity and simplicity in the wording, with the possibility of direct understanding, without references to texts or documents that are not provided prior to or simultaneously with the conclusion of the contract, and to which, in any case, express reference must be made in the contractual document. b) Accessibility and legibility, in such a way as to enable the consumer and user to be aware of its existence and content prior to the conclusion of the contract. In no case shall this requirement be deemed to be fulfilled if the letter size of the contract is less than one and a half millimeters or if the insufficient contrast with the background makes it difficult to read. c) Good faith and fair balance between the rights and obligations of the parties, which in any case excludes the use of abusive clauses. 2. When individual actions are brought, in the event of doubt as to the meaning of a clause, the interpretation most favorable to the consumer shall prevail.

Article 81. Approval and Information. 1. The companies that enter into contracts with consumers and users, at the request of the Spanish Agency of Consumption and Food Safety and Nutrition, of the corresponding bodies or entities of the Autonomous Communities and of the local Corporations competent in matters of defense of consumers and users, within the scope of their respective competences, shall be obliged to send the general contracting conditions that make up such contracts, within a maximum period of one month from the receipt of the request, in order to facilitate the study and assessment of the possible abusive nature of certain clauses and, where appropriate, to exercise the powers of control and sanction attributed to them by this law. 2. Notaries Public and Property and Mercantile Registrars, in the professional exercise of their respective public functions, shall inform consumers and users on matters within their specialty and competence. 3. The clauses, conditions or stipulations used by public companies or public service concessionaires shall be subject to the approval and control of the competent public administrations, when so provided as a requirement of validity and independently of the consultation of the Council of Consumers and Users, provided for in this or other laws, all without prejudice to their submission to the general provisions of this regulation.

Article 82. Concept of unfair terms. 1. All those stipulations not individually negotiated and all those practices not expressly consented to which, contrary to the requirements of good faith, cause, to the detriment of the consumer and user, a significant imbalance in the rights and obligations of the parties arising from the contract shall be considered unfair terms. The fact that certain elements of a term or an individual term have been individually negotiated shall not exclude the application of the rules on unfair terms to the rest of the contract. The entrepreneur who claims that a particular term has been individually negotiated shall bear the burden of proof. 3. The unfairness of a term shall be assessed taking into account the nature of the goods or services covered by the contract and considering all the circumstances existing at the time of its conclusion, as well as all the other terms of the contract or of another contract on which the contract depends. 4. Notwithstanding the provisions of the preceding paragraphs, in any case the clauses which, in accordance with the provisions of articles 85 to 90, both inclusive, are unfair: (a) bind the contract to the will of the entrepreneur, (b) limit the rights of the consumer and user, (c) determine the lack of reciprocity in the contract, (d) impose on the consumer and user disproportionate guarantees or unduly impose on him the burden of proof, (e) are disproportionate in relation to the conclusion and performance of the contract, or (f) contravene the rules on competition and applicable law.

Article 83. Nullity of unfair terms and continuance of the contract. The abusive clauses shall be null and void by operation of law and shall be deemed not to have been included in the contract. To these effects, the Judge, after hearing the parties, will declare the nullity of the abusive clauses included in the contract, which, nevertheless, will continue being obligatory for the parties in the same terms, whenever it can subsist without such clauses. The conditions incorporated in a non-transparent manner in contracts to the detriment of consumers shall be null and void. Article 84. Authorization and registration of clauses declared unfair. The Notaries and the Property and Mercantile Registrars, in the professional exercise of their respective public functions, shall not authorize or register those contracts or legal transactions in which the inclusion of clauses declared null and void as abusive in a sentence registered in the Register of General Contracting Conditions is intended.

Article 85. Unfair terms for linking the contract to the will of the entrepreneur. The clauses that link any aspect of the contract to the will of the businessman will be abusive and, in any case, the following: 1. The clauses that reserve to the businessman that contracts with the consumer and user an excessively long or insufficiently determined term to accept or to reject a contractual offer or to satisfy the due performance. Clauses that provide for the automatic extension of a fixed-term contract if the consumer and user does not object, setting a deadline date BOLETÍN OFICIAL DEL ESTADO LEGISLACIÓN CONSOLIDADA Página 39 that does not effectively allow the consumer and user to express his will not to extend it. The clauses that reserve in favor of the employer powers of interpretation or unilateral modification of the contract, unless, in the latter case, there are valid reasons specified in the contract. In contracts relating to financial services, the provisions of the preceding paragraph shall be without prejudice to clauses whereby the entrepreneur reserves the right to modify without prior notice the interest rate payable by the consumer or to the consumer, as well as the amount of other costs related to financial services, when they are index-linked, provided that they are legal indexes and the method of variation of the rate is described, or in other cases of valid reason, provided that the entrepreneur is obliged to inform the other contracting parties as soon as possible and they can immediately terminate the contract without penalty. The terms of an open-ended financial services contract may also be unilaterally modified for the valid reasons stated therein, provided that the entrepreneur is obliged to inform the consumer and user reasonably in advance and the latter has the right to terminate the contract, or, where appropriate, to terminate it unilaterally, without prior notice in the event of a valid reason, provided that the entrepreneur immediately informs the other contracting parties thereof. 4. Clauses authorizing the employer to terminate a fixed-term contract early, if the consumer and user is not recognized the same power, or those that empower the employer to terminate contracts of indefinite duration in a disproportionately short period or without prior notice with reasonable notice. The provisions of this paragraph do not affect clauses providing for the termination of the contract for breach or for serious reasons beyond the control of the parties, which alter the circumstances that led to the conclusion of the contract. 5. Clauses that determine the unconditional binding of the consumer and user to the contract even if the employer had not fulfilled its obligations. 6. Clauses that involve the imposition of a disproportionately high compensation to the consumer and user who does not comply with its obligations. 7. The clauses involving the subordination to a condition whose realization depends solely on the will of the employer for the performance of the services, when the consumer and user has been required a firm commitment. 8. The clauses that involve the inclusion of merely indicative delivery dates conditional on the will of the entrepreneur. 9. Clauses that determine the exclusion or limitation of the obligation of the entrepreneur to respect the agreements or commitments made by its agents or representatives or subject their commitments to the fulfillment of certain formalities. 10. Clauses that provide for the stipulation of the price at the time of delivery of the good or service or those that give the entrepreneur the power to increase the final price over the agreed price, without in both cases there are objective reasons and without recognizing the consumer and user the right to terminate the contract if the final price is much higher than initially stipulated. The provisions of the preceding paragraph shall be without prejudice to the adaptation of prices to an index, provided that such indexes are legal and that the contract explicitly describes the mode of price variation. 11. Clauses that grant the entrepreneur the right to determine whether the good or service complies with the terms of the contract.

Article 86. Unfair terms for limiting the basic rights of the consumer and user. In any case, the clauses that limit or deprive the consumer and user of the rights recognized by operative or imperative norms and, in particular, those stipulations that foresee: 1. The exclusion or limitation in an inadequate way of the legal rights of the consumer and user by total or partial breach or defective fulfillment of the businessman will be abusive. In particular, clauses that modify, to the detriment of the consumer and user, the legal rules on conformity with the contract of the goods or services made available or limit the right of the consumer and user to compensation for damages caused by such lack of conformity. 2. The exclusion or limitation of the liability of the entrepreneur in the performance of the contract, for damage or death or injury caused to the consumer and user by an act or omission of the former. 3. The release of liability of the entrepreneur by assignment of the contract to a third party, without the consent of the debtor, if it can engender a reduction of the guarantees of the latter. 4. The deprivation or restriction to the consumer and user of the powers of compensation of credits, retention or consignment. 5. The limitation or exclusion of the power of the consumer and user to terminate the contract for breach of contract by the entrepreneur. 6. The imposition of waivers to the delivery of a document evidencing the transaction. 7. The imposition of any other waiver or limitation of the rights of the consumer and user.

Article 87. Unfair terms due to lack of reciprocity. They are abusive the clauses that determine the lack of reciprocity in the contract, contrary to the good faith, to the detriment of the consumer and user and, in particular: 1. The imposition of obligations to the consumer and user for the fulfillment of all his duties and considerations, even when the businessman had not fulfilled his own. 2. The withholding of amounts paid by the consumer and user by resignation, without providing for compensation for an equivalent amount if the entrepreneur resigns. 3. The authorization to the entrepreneur to terminate the contract at his discretion, if the consumer and user is not recognized the same power. 4. The possibility for the entrepreneur to keep the amounts paid for services not yet rendered when it is the entrepreneur himself who terminates the contract. 5. Stipulations providing for the rounding up of the time consumed or the price of goods or services or any other stipulation providing for the charging for products or services not actually used or consumed. In those sectors in which the commencement of the service is inextricably linked to a cost for the companies or professionals that is not included in the price, the separate invoicing of such costs shall not be considered abusive, when they are in line with the service actually rendered. 6. Stipulations that impose onerous or disproportionate obstacles to the exercise of the rights recognized to the consumer and user in the contract, in particular in contracts for the provision of services or supply of products of successive or continuous tract, the imposition of excessive duration periods, the waiver or the establishment of limitations that exclude or hinder the right of the consumer and user to terminate these contracts, as well as the hindering of the exercise of this right through the agreed procedure, such as those providing for the imposition of formalities other than those provided for in the contract or the loss of amounts paid in advance, the payment of amounts for services not actually rendered, the attribution to the entrepreneur of the power of unilateral execution of penalty clauses that had been contractually fixed or the fixing of compensation that does not correspond to the damage actually caused.

Article 88. Abusive clauses on guarantees. The imposition of guarantees disproportionate to the risk assumed shall be considered abusive. It will be presumed that there is no disproportion in the contracts of financing or guarantees agreed by financial entities that adjust to their specific regulations. 2. The imposition of the burden of proof to the detriment of the consumer and user in cases where it should correspond to the other contracting party. 3. The imposition on the consumer of the burden of proof regarding the total or partial non-compliance, by the distance supplier of financial services, of the obligations imposed by the specific regulations on the matter.

Article 89. Unfair terms affecting the perfection and execution of the contract. Declarations of receipt or conformity on fictitious facts, and declarations of adhesion of the consumer and user to clauses of which he/she has not had the opportunity to take real knowledge before the conclusion of the contract. 2. The transmission to the consumer and user of the economic consequences of administrative or management errors that are not attributable to him. 3. The imposition on the consumer of the costs of documentation and processing that by law corresponds to the entrepreneur. In particular, in the sale of housing: a) The stipulation that the consumer must bear the costs arising from the preparation of the title that by their nature correspond to the entrepreneur (new construction, horizontal property, mortgages to finance its construction or its division and cancellation). b) The stipulation that obliges the consumer to be subrogated in the mortgage of the entrepreneur or imposes penalties in cases of non-subrogation. c) The stipulation that imposes on the consumer the payment of taxes in which the taxable person is the entrepreneur. d) The stipulation that imposes on the consumer the expenses derived from the establishment of the accesses to the general supplies of the dwelling, when this must be delivered in habitable conditions. 4. The imposition on the consumer and user of complementary or accessory goods and services not requested. 5. Price increases for ancillary services, financing, deferrals, surcharges, compensation or penalties that do not correspond to additional services that can be accepted or rejected in each case expressed with due clarity or separation. 6. The express refusal to comply with the employer's own obligations or services, with automatic referral to administrative or judicial claim procedures. 7. The imposition of credit conditions that for current account overdrafts exceed the limits contained in Article 19.4 of Law 7/1995, of March 23, 1995, on Consumer Credit. 8. The provision of waiver or transaction agreements with respect to the right of the consumer and user to choose the competent notary according to the law to authorize the public document in which the contract is to be formalized initially or subsequently.

Article 90. Abusive clauses on jurisdiction and applicable law. The submission to arbitration other than consumer arbitration, except in the case of institutional arbitration bodies created by law for a specific sector or case. 2. The provision of express submission agreements to a judge or court other than the one corresponding to the domicile of the consumer and user, the place of performance of the obligation or the one in which the property is located if it is immovable property. 3. The submission of the contract to a foreign law with respect to the place where the consumer and user issues his negotiating statement or where the entrepreneur develops the activity aimed at the promotion of contracts of the same or similar nature. Article 91. Contracts relating to securities, financial instruments and currencies. Abusive clauses referring to the unilateral modification of contracts, to the early termination of contracts of indefinite duration and to the increase in the price of goods and services, shall not apply to contracts relating to securities, regardless of their form of representation, financial instruments and other goods and services whose price is linked to a quotation, stock market index, or a financial market rate that the entrepreneur does not control, nor to contracts for the purchase and sale of foreign currency, traveler's checks or international money orders in foreign currency.

Article 92. Scope of application. Contracts concluded at a distance with consumers and users within the framework of an organized system of sale or provision of services at a distance, without the simultaneous physical presence of the entrepreneur and the consumer and user, and in which one or more techniques of distance communication have been used exclusively up to the moment of the conclusion of the contract and in the conclusion of the contract itself, shall be governed by the provisions of this title. Among others, the following are considered as distance communication techniques: postal mail, Internet, telephone or fax. 2. The provisions of this title shall also apply to the following contracts concluded with consumers and users outside the business premises: a) Contracts concluded with the simultaneous physical presence of the entrepreneur and the consumer and user, in a place other than the business premises of the entrepreneur. b) Contracts in which the consumer and user has made an offer in the same circumstances as those referred to in letter a). c) Contracts concluded on the business premises of the entrepreneur or through the use of any means of distance communication immediately after there has been personal and individual contact with the consumer and user in a place other than the business premises of the entrepreneur, with the simultaneous physical presence of the entrepreneur and the consumer and user. d) Contracts concluded during an excursion organized by the entrepreneur for the purpose of promoting and selling products or services to the consumer and user. 3. Without prejudice to the provisions of Article 10 and the unwaivable nature of the rights recognized to the consumer and user in this title, the contractual clauses that are more beneficial to the consumer and user shall be valid. 4. All contracts and offers concluded outside the commercial establishment shall be presumed to be subject to the provisions of this title, and proof to the contrary shall correspond to the entrepreneur.

Article 93. Exceptions. a) To contracts for social services, including social housing, child care and support for families and persons in need, temporarily or permanently, including long-term care. b) To contracts for health-related services, provided by a healthcare professional to patients to assess, maintain or restore their state of health, including the prescription, dispensing and provision of medicines and medical devices, regardless of whether these services are provided in healthcare facilities. c) To contracts for gambling activities involving wagers of monetary value in games of chance, including lotteries, casino games and betting. d) To contracts for financial services. e) To contracts for the creation, acquisition or transfer of immovable property or rights thereon. f) To contracts for the construction of new buildings, the substantial conversion of existing buildings and the rental of accommodation for use as housing. g) To contracts relating to package travel under Article 151.1.b), except Article 98.2 and 98.6. h) To contracts relating to the protection of consumers and users with respect to certain aspects of contracts for the timeshare of goods for tourist use, acquisition of long-term holiday products, resale and exchange regulated in Law 4/2012, of July 6, on contracts for the timeshare of goods for tourist use, acquisition of long-term holiday products, resale and exchange and tax rules. i) To contracts that, according to current legislation, must be concluded before a notary public, required by law to be independent and impartial and to ensure, through the provision of understandable legal information, that the consumer and user enters into the contract only after sufficient reflection and with full knowledge of its legal scope. j) To contracts for the supply of foodstuffs, beverages or other goods for everyday household consumption, physically supplied by an entrepreneur by means of frequent and regular deliveries to the home or place of residence or place of work of the consumer and user. k) To contracts for passenger transport services, without prejudice to the application of Article 98.2. l) To contracts concluded by means of automatic vending machines or automated commercial installations. m) To contracts concluded with telecommunications operators through public telephones for the use of such telephones, or concluded for the establishment of a single telephone, Internet or fax connection by a consumer and user.

Article 94. Commercial communications and electronic contracting. In commercial communications by electronic mail or other means of electronic communication and in the distance contracting of goods or services by electronic means, in addition to the provisions of this title, the specific regulations on information society services and electronic commerce shall apply. When the provisions of this title are in contradiction with the content of the specific regulations on information society services and electronic commerce, the latter shall be of preferential application, except as provided in article 97.7, second paragraph.

Article 95. Intermediation services in the distance contracts. The operators of the distance communication techniques, understanding as such the natural or legal persons, public or private, that are holders of the distance communication techniques used by the businessmen, are obliged to try, to the extent of their possibilities and with the due diligence, that these respect the rights that this title recognizes to the consumers and users and fulfill the obligations that in it are imposed to them. The provisions of the preceding paragraph shall not be applicable to the providers of intermediation services of the information society, which shall be governed by the provisions of the specific regulations on services of the information society and electronic commerce.

Article 96. Commercial communications at a distance. 1. All commercial communications at a distance shall unequivocally state their commercial nature. 2. In the case of telephone communications, the identity of the entrepreneur, or if applicable, the identity of the person on whose behalf the call is being made, shall be explicitly and clearly stated at the beginning of any conversation with the consumer and user, as well as the commercial purpose of the call. In no case shall telephone calls be made before 9 a.m. or later than 9 p.m. or on holidays or weekends. 3. The use by the entrepreneur of communication techniques consisting of an automated calling system without human intervention or telefax shall require the prior express consent of the consumer and user. The consumer and user shall have the right not to receive, without his consent, calls for commercial communication purposes made through systems other than those referred to in the previous paragraph, when he has decided not to appear in the publicly available electronic communications directories, exercised the right not to have the data appearing therein used for advertising or commercial prospecting purposes, or requested inclusion in the common files for excluding the sending of commercial communications regulated in the personal data protection regulations. 4. The consumer and user shall have the right to object to receiving unwanted commercial offers by telephone, fax or other equivalent means of communication. Within the framework of a pre-existing relationship, the consumer and user shall also have the right to object to receiving commercial communications by e-mail or other equivalent means of electronic communication. He/she must be informed in each commercial communication of the simple and free means to object to receive them. 5. In cases where an unwanted commercial offer is made by telephone, calls should be made from an identifiable telephone number. When the user receives the first commercial offer from the sender, he must be informed both of his right to express his opposition to receiving further offers and to obtain the reference number of this opposition. At the request of the consumer and user, the entrepreneur is obliged to provide him with proof of having expressed his opposition, which must be sent to him as soon as possible and in any case within a maximum period of one month. The issuer shall be obliged to keep for at least one year the data relating to users who have exercised their right to object to receiving commercial offers, together with the reference number given to each of them, and shall make them available to the competent authorities. 6. In any case, the provisions in force on the protection of minors and respect for privacy must be complied with. When personal data are used for commercial communications without the consent of the interested party, the recipient shall be provided with the information set forth in article 30.2 of Organic Law 15/1999, of December 13, on Personal Data Protection, and the recipient shall be offered the opportunity to object to receiving the same.

Article 97. Pre-contractual information of distance contracts and off-premises contracts. 1. Before the consumer and user is bound by any distance or off-premises contract or any corresponding offer, the entrepreneur shall provide him with the following information in a clear and comprehensible manner: a) The main characteristics of the goods or services, to the extent appropriate to the medium used and the goods or services. b) The identity of the entrepreneur, including his trade name. c) The full address of the establishment of the entrepreneur and the telephone number, fax number and e-mail address of the same, where appropriate, so that the consumer and user can contact and communicate with him quickly and efficiently, as well as, where appropriate, the full address and identity of the entrepreneur on whose behalf he acts. d) If different from the address provided in accordance with point c), the full address of the place of business of the entrepreneur and, where appropriate, that of the entrepreneur on whose behalf he is acting, to which the consumer and user may address his complaints. e) The total price of the goods or services, including taxes and duties, or, if the price cannot reasonably be calculated in advance because of the nature of the goods or services, the manner in which the price is determined, as well as, where applicable, all additional freight, delivery or postal and any other charges or, if such charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of an open-ended contract or a contract including a subscription, the price shall include the total costs per billing period. Where such contracts are charged on a flat-rate basis, the total price shall also mean the total monthly costs. Where the total cost cannot reasonably be calculated in advance, the manner in which the price is determined shall be stated. f) The cost of using the remote communication technique for the conclusion of the contract, where such cost is calculated on a basis other than the basic rate. g) The procedures for payment, delivery and performance, the date on which the entrepreneur undertakes to deliver the goods or perform the provision of the services, as well as, where appropriate, the system for dealing with the entrepreneur's complaints. h) The language or languages in which the contract may be concluded, when this is not the language in which the pre-contractual information has been offered. i) Where there is a right of withdrawal, the conditions, time limit and procedures for exercising that right, as well as the model withdrawal form. j) Where appropriate, the indication that the consumer and user will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, when the goods, by their nature, can not normally be returned by mail, the cost of returning them. k) Where the consumer and user exercises the right of withdrawal following the submission of a request in accordance with Article 98.8 or Article 99.3, information that in such a case the consumer and user shall pay the entrepreneur reasonable costs in accordance with Article 108.3. l) Where under Article 103 does not apply the right of withdrawal, the indication that the consumer and user does not have it, or the circumstances in which it will lose it when it applies. m) A reminder of the existence of a legal guarantee of conformity for goods. n) Where appropriate, the existence of after-sales assistance to the consumer and user, after-sales services and commercial guarantees and their conditions. o) The existence of relevant codes of conduct and how to get copies of them, if any. For this purpose, a code of conduct is understood as the agreement or set of rules not imposed by legal, regulatory or administrative provisions, defining the behavior of those entrepreneurs who undertake to comply with the code in relation to one or more commercial practices or economic sectors. p) The duration of the contract, where appropriate, or, if the contract is open-ended or automatically extended, the conditions for termination. q) Where appropriate, the minimum duration of the consumer and user obligations arising from the contract. (r) where applicable, the existence and conditions of deposits or other financial guarantees which the consumer and user is required to pay or provide at the request of the trader; (s) where applicable, the functionality of the digital content, including any applicable technical protection measures; (t) where applicable, any relevant interoperability of the digital content with hardware and software known to the trader or which the trader may reasonably be expected to know; (u) where applicable, the possibility of recourse to an out-of-court complaint and redress mechanism to which the trader is subject and the methods for accessing it. Paragraph 1 shall also apply to contracts for the supply of water, gas, electricity - where they are not packaged for sale in a limited volume or set quantity -, district heating and digital content which is not provided on a tangible medium. In public auctions, the information referred to in paragraph 1. b), c) and d) may be replaced by the equivalent data of the auctioneer. 4. The information referred to in paragraph 1. i), j) and k) may be provided through the model of information document to the consumer and user on withdrawal set out in Annex A. The information requirements referred to in paragraph 1. i), j) and k) have been fulfilled by the entrepreneur, when he has provided such information correctly completed. The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the parties expressly provide otherwise. It shall be for the entrepreneur to prove the proper fulfillment of his duties of information and, where appropriate, the express agreement on the content of the information provided prior to the conclusion of the contract. 6. If the trader does not comply with the information requirements on additional charges or other costs referred to in paragraph 1. e), or on the costs of returning the goods referred to in paragraph 1. j), the consumer and user shall not pay such charges or costs. 7. The information requirements established in this chapter shall be understood as additional to the requirements contained in Law 17/2009, of November 23, on free access to and exercise of service activities and in Law 34/2002, of July 11, on information society services and electronic commerce. Without prejudice to the provisions of the preceding paragraph, if a general or sectorial provision on the provision of services, including information society services and electronic commerce, relating to the content or manner in which the information must be provided should conflict with any provision of this law, the provision of this law shall prevail. 8. The burden of proof in relation to compliance with the information requirements set forth in this article shall be on the employer.

Article 98. Formal requirements for distance contracts. 1. In distance contracts, the trader shall provide the consumer and user, in the language used in the contracting proposal or in the language chosen for the contracting, and at least in Spanish, with the information required in Article 97.1 or shall make it available in a manner consistent with the distance communication techniques used, in clear and understandable terms and shall respect, in particular, the principle of good faith in commercial transactions, as well as the principles of protection of those who are incapable of contracting. Where such information is provided on a durable medium, it must be legible. 2. If a distance contract to be concluded by electronic means involves payment obligations for the consumer and user, the trader shall make known to the latter in a clear and prominent manner, and just before he places the order, the information set out in Article 97.1.a), e), p) and q). The trader shall ensure that the consumer and user, when placing the order, expressly confirms that he is aware that the order implies an obligation to pay. If the placing of an order is done by activating a button or similar function, the button or similar function shall be labeled, in an easily legible manner, only with the expression "order with obligation to pay" or a similar unambiguous wording indicating that the placing of the order implies an obligation to pay the entrepreneur. Otherwise, the consumer and user shall not be bound by the contract or order. 3. Trading websites shall indicate clearly and legibly, at the latest at the start of the purchase procedure, whether any delivery restrictions apply and which payment methods are accepted. 4. If the contract is concluded by means of a means of distance communication in which space or time for providing information is limited, the trader shall provide on that specific medium, prior to the conclusion of the contract, at least the pre-contractual information on the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, in the case of open-ended contracts, the conditions for termination as referred to in Article 97.1. a), b), e), i) and p). The entrepreneur shall provide the consumer and user with the other information listed in Article 97 in an appropriate manner in accordance with paragraph 1. 5. Without prejudice to paragraph 4 if the entrepreneur telephones the consumer and user to conclude a distance contract, shall disclose, at the beginning of the conversation, his identity and, where appropriate, the identity of the person on whose behalf he is making the call, and indicate the commercial purpose of the call. In those cases where it is the entrepreneur who contacts a consumer and user by telephone in order to conclude a distance contract, he shall confirm the offer to the consumer and user in writing, or, unless the consumer and user objects, on any durable medium. The consumer and user shall only be bound once he has accepted the offer by signing it or by sending his agreement in writing, which may, inter alia, be by paper, e-mail, fax or sms. 7. The entrepreneur shall provide the consumer and user with confirmation of the contract concluded on a durable medium within a reasonable time after the conclusion of the distance contract, at the latest at the time of delivery of the goods or before the start of the performance of the service. Such confirmation shall include: a) All the information listed in Article 97.1, unless the entrepreneur has already provided the information to the consumer and user on a durable medium prior to the conclusion of the distance contract, and b) Where appropriate, confirmation of the prior express consent of the consumer and user and of the knowledge on his part of the loss of the right of withdrawal in accordance with Article 103.m). 8. Where a consumer and user wishes the provision of services or the supply of water, gas or electricity - when not packaged for sale in a limited volume or quantity - or district heating to commence during the withdrawal period provided for in Article 104, the entrepreneur shall require the consumer and user to submit an express request to that effect. 9. It is for the entrepreneur to prove compliance with the obligations referred to in this article. The entrepreneur shall take appropriate and effective measures to enable him to unequivocally identify the consumer and user with whom he concludes the contract. 10. This article shall be without prejudice to the provisions on the conclusion of contracts and the placing of orders by electronic means established in Law 34/2002, of July 11.

Article 99. Formal requirements for off-premises contracts. 1. In off-premises contracts, the trader shall provide the consumer and user with the information required in Article 97.1 on paper or, if the latter agrees, on another durable medium. Such information shall be legible and shall be written at least in Spanish and in clear and comprehensible terms. 2. The entrepreneur shall provide the consumer and user with a copy of the signed contract or confirmation thereof on paper or, if he agrees, on a different durable medium, including, where appropriate, confirmation of the prior express consent of the consumer and user and of his knowledge of the loss of the right of withdrawal referred to in Article 103.m). 3. Where a consumer and user wishes the provision of services or the supply of water, gas, electricity - where not packaged for sale in a limited volume or quantity - or district heating to commence during the withdrawal period provided for in Article 104, the trader shall require the consumer and user to submit an express request to that effect on a durable medium. 4. It is up to the entrepreneur to prove compliance with the obligations referred to in this article. The entrepreneur must take appropriate and effective measures to enable him to unequivocally identify the consumer and user with whom he concludes the contract.

Article 100. Consequences of non-performance. 1. The contract concluded without the consumer and user having been provided with a copy of the contract concluded or confirmation thereof, in accordance with Articles 98.7 and 99.2, may be annulled at the request of the consumer and user by way of action or exception. 2. In no case may the cause of nullity be invoked by the entrepreneur, unless the breach is exclusive to the consumer and user. 3. The entrepreneur shall bear the burden of proof of compliance with the provisions of this article.

Article 101. Necessity of express consent. 1. In no case shall the lack of response to the contracting offer be considered as acceptance thereof. 2. If the entrepreneur, without the explicit acceptance of the consumer and user to whom the offer is addressed, supplies him with the good or service offered, the provisions of Article 66 quater shall apply.

Article 102. Right of withdrawal. Subject to the exceptions provided for in Article 103, the consumer and user shall have the right to withdraw from the contract for a period of 14 calendar days without stating the reason and without incurring any cost other than those provided for in Articles 107.2 and 108. 2.

Article 103. Exceptions to the right of withdrawal. The right of withdrawal shall not apply to contracts relating to: a) The provision of services, once the service has been fully executed, when the execution has begun, with prior express consent of the consumer and user and with the recognition on his part that he is aware that, once the contract has been fully executed by the entrepreneur, he will have lost his right of withdrawal. b) The supply of goods or the provision of services whose price depends on fluctuations in the financial market that the entrepreneur can not control and that may occur during the withdrawal period. c) The supply of goods made to the specifications of the consumer and user or clearly personalized. d) The supply of goods that may deteriorate or expire quickly. e) The supply of sealed goods that are not suitable to be returned for reasons of health protection or hygiene and have been unsealed after delivery. f) The supply of goods which after delivery and taking into account their nature have become inseparably mixed with other goods. g) The supply of alcoholic beverages whose price has been agreed upon at the time of concluding the sales contract and which cannot be delivered within 30 days, and whose actual value depends on market fluctuations beyond the entrepreneur's control. h) Contracts in which the consumer and user has specifically requested the trader to visit him for urgent repair or maintenance operations; if, during such a visit, the trader provides additional services to those specifically requested by the consumer or supplies goods other than spare parts necessarily used to perform maintenance or repair operations, the right of withdrawal should apply to such additional services or goods. i) The supply of sealed sound or video recordings or sealed computer programs that have been unsealed by the consumer and user after delivery. j) The supply of daily newspapers, periodicals or magazines, with the exception of subscription contracts for the supply of such publications. k) Contracts concluded by means of public auctions. l) The supply of accommodation services for purposes other than serving as a dwelling, transport of goods, car rental, food or services related to leisure activities, if the contracts provide for a specific date or period of performance. m) The supply of digital content that is not provided on a tangible medium when the performance has begun with the prior express consent of the consumer and user with the knowledge on his part that he consequently loses his right of withdrawal.

Article 104. Period for the exercise of the right of withdrawal. Without prejudice to the provisions of Article 105, the withdrawal period shall end 14 calendar days from: a) In the case of service contracts, the day of the conclusion of the contract. b) In the case of sales contracts, the day that the consumer and user or a third party indicated by him, other than the carrier, acquires physical possession of the goods ordered, or: 1.In case of delivery of multiple goods ordered by the consumer and user in the same order and delivered separately, the day that the consumer and user or a third party indicated by him, other than the carrier, acquires the material possession of the last of the goods. 2. In case of delivery of a good composed of multiple components or parts, the day that the consumer and user or a third party indicated by him, other than the carrier, acquires the material possession of the last component or part. 3. In the case of contracts for the periodic delivery of goods during a specified period, the day on which the consumer and user or a third party indicated by him, other than the carrier, acquires the material possession of the first of those goods. c) In the case of contracts for the supply of water, gas or electricity - when they are not packaged for sale in a delimited volume or in specified quantities - or of heating by means of urban systems or digital content that is not provided on a material support, the day on which the contract is concluded.

Article 105. Failure to provide information on the right of withdrawal. 1. If the entrepreneur has not provided the consumer and user information on the right of withdrawal, as provided in Article 97.1.i), the withdrawal period shall end twelve months after the date of expiry of the initial withdrawal period, determined in accordance with Article 104. 2. If the entrepreneur has provided the consumer and user with the information referred to in paragraph 1, within twelve months from the date referred to in Article 104, the withdrawal period shall expire 14 calendar days from the date on which the consumer and user receives the information.

Exercise and effects of the right of withdrawal. 1. Before the expiration of the withdrawal period, the consumer and user shall inform the entrepreneur of his decision to withdraw from the contract. For this purpose, the consumer and user may use the model withdrawal form contained in Annex B of this law; or make another type of unequivocal statement indicating its decision to withdraw from the contract. The consumer and user shall have exercised his right of withdrawal within the period referred to in Article 104 and Article 105, when he has sent the communication concerning the exercise of the right of withdrawal before the end of that period. To determine the observance of the time limit for withdrawal shall take into account the date of issue of the declaration of withdrawal. The entrepreneur may offer the consumer and user, in addition to the possibilities referred to in paragraph 1, the option of completing and sending electronically the model withdrawal form set out in Annex B, or any other unequivocal statement through the website of the entrepreneur. In such cases, the entrepreneur shall communicate without delay to the consumer and user on a durable medium the acknowledgement of receipt of such withdrawal. 4. The burden of proof of the exercise of the right of withdrawal shall be on the consumer and user. 5. The exercise of the right of withdrawal shall extinguish the obligations of the parties to perform the distance or off-premises contract, or to conclude the contract, where the consumer and user has made an offer. 6. In the case of contracts for the supply of water, gas, electricity -when not packaged for sale in a delimited volume or in specific quantities-, or district heating, in which the supply was already being carried out prior to the contracting of the service, unless expressly stated otherwise, the consumer's interest in continuing with the supply of the service shall be understood to be the interest of the consumer, returning to be supplied by his previous supplier. On the other hand, if the service was not being supplied prior to the contracting of the service, the cancellation request will imply the cancellation of the service.

Article 107. Obligations and rights of the entrepreneur in case of withdrawal. 1. The entrepreneur shall reimburse any payment received from the consumer and user, including, where appropriate, the costs of delivery, without undue delay and, in any case, no later than 14 calendar days from the date on which it has been informed of the decision of withdrawal from the contract of the consumer and user in accordance with Article 106. The entrepreneur shall make the refund referred to in the first paragraph using the same means of payment used by the consumer for the initial transaction, unless the consumer has expressly provided otherwise and provided that the consumer does not incur any costs as a result of the refund. 2. Notwithstanding the provisions of paragraph 1, in the event that the consumer and user has expressly selected a mode of delivery other than the least expensive mode of standard delivery, the entrepreneur shall not be obliged to reimburse the additional costs arising therefrom. 3. Except where the trader has offered to collect the goods himself, in sales contracts, the trader may withhold reimbursement until he has taken delivery of the goods, or until the consumer and user has provided proof of return of the goods, whichever condition is met first.

Article 108. Obligations and liability of the consumer and user in case of withdrawal. Unless the entrepreneur himself offers to collect the goods, the consumer and user must return or deliver them to the entrepreneur, or to a person authorized by the entrepreneur to receive them, without undue delay and, in any case, no later than within 14 calendar days from the date on which he communicates his decision to withdraw from the contract to the entrepreneur, in accordance with Article 106. The consumer and user shall only bear the direct costs of returning the goods, unless the trader has agreed to bear these costs or has not informed the consumer and user that he has to bear these costs. In the case of off-premises contracts where the goods have already been delivered to the consumer and user's home at the time of conclusion of the contract, the entrepreneur shall collect the goods at his own expense where, by the nature of the goods, they cannot be returned by post. The consumer and user 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 their nature, characteristics or functioning. In no case shall be liable for diminished value of the goods if the entrepreneur has not informed him of his right of withdrawal in accordance with Article 97.1.i). 3. Where a consumer and user exercises the right of withdrawal after having made a request in accordance with Article 98.8 or Article 99.3, he shall pay the entrepreneur an amount proportionate to the part of the service already provided at the time he has informed the entrepreneur of the exercise of the right of withdrawal, in relation to the total subject matter of the contract. The proportionate amount to be paid to the entrepreneur shall be calculated on the basis of the total price agreed in the contract. In the event that the total price is excessive, the proportional amount shall be calculated on the basis of the market value of the part of the service already provided. 4. The consumer and user shall not bear any costs for: a) The provision of services or the supply of water, gas or electricity - when not packaged for sale in a limited volume or in specified quantities - or district heating, in whole or in part, during the withdrawal period, when: 1.The entrepreneur has not provided information in accordance with Article 97.1.i) or k); or 2. The consumer and user has not expressly requested that the provision of the service is initiated during the withdrawal period in accordance with Article 98.8 and Article 99.3; or b) The supply, in whole or in part, of digital content that is not provided on a tangible medium, where: 1. The consumer and user has not expressly given his prior consent to the performance before the end of the period of 14 calendar days referred to in Article 102. 2.The consumer and user is not aware that he waives his right of withdrawal by giving his consent; or 3. The entrepreneur has not given confirmation in accordance with Article 98.7 or Article 99.2. 5. Except as provided in Article 107.2, and this Article, the consumer and user shall not incur any liability as a result of the exercise of the right of withdrawal.