Delay and the Consequences of the Delay
In case the seller does not perform his duty in due time, and the delivery is not delayed due to a reason attributable to the buyer, the delay constitutes a breach of contract on seller’s part. The buyer is protected in several ways in case of seller’s delay.
In case of delay in delivery, the buyer has a right to withhold payment of the purchase price. However, in case only a part of the delivery is delayed, a comparable part of the payment may be withheld. The buyer has the right to demand fulfillment of the contract from the seller. The seller is not liable to do this if there is an impediment in fulfilling the contract the seller cannot overcome or if the fulfillment of the contract would require unreasonable sacrifices from the seller when compared to the significance of the fulfillment of the contract to the buyer.
The buyer may cancel the contract due to seller´s delay generally when a reasonable extension of time has been granted to the seller and the seller has not fulfilled the contract in that time. In certain cases, granting an extension of time is not required.
After cancellation of the contract, the parties must return to each other everything that has been paid and provided based on the contract. Regarding digital content or service that is to be provided during a longer period, the seller is liable to return only the part of the payment that corresponds to the time the digital content or service has been defective and the part of the payment the buyer has paid upfront for the time the contract would have been in effect if it would not have been cancelled.
If a contract concerning digital content or service is cancelled, the buyer must abstain from using the digital content or service and sharing it to third parties. If the digital content or service has been delivered using a tangible medium (e.g. memory stick or card), such tangible medium must be returned upon the seller´s request and at the seller´s expense without undue delay. Upon cancellation of a contract concerning digital content or service , the seller has the right to prevent the buyer from using the digital content or service, close the buyer´s account or in other ways prevent the buyer from using the digital content or service. The seller must abstain from using content created or delivered by the buyer while using the digital content or service provided by the seller, except if:
the content in question is not usable without the digital content or service provided by the seller;
the content in question is solely related to the buyer´s actions while using the seller´s digital content or service;
the seller has linked the content in question with other information it cannot be separated from, or its separation would cause unreasonable inconvenience; or
the buyer has created the content together with other consumers and the other consumer can still use the content in question.
In cases other than those mentioned above, the seller must, upon the buyer´s request, give the buyer access to all content the buyer has delivered or created while using the digital content or service provided by the seller. This must be done free of charge, in reasonable time and in a commonly used machine-readable file format.
However, General Data Protection Regulation is applied to the processing of personal data.
In case the delay causes damage to the buyer, the buyer may also demand compensation for the damages incurred due to delay. The seller is liable to compensate for the direct damages caused by the delay but indirect damages, such as loss of income, is only reimbursable if the delay or damage is caused by negligence of the seller. It should be noted that the buyer is not entitled to compensation in case the seller proves that the delay was due to a force majeure event, i.e., an impediment beyond seller’s control, which the seller could not reasonably be expected to have considered at the time of conclusion of the contract and whose consequences it could not reasonably have avoided or overcome.