REGULATION ON M.S.U.E.

REGULATION ON M.S.U.E.

Official Gazette Issue Date: 27.11.2014 Official Gazette Issue Number: 29188

REGULATION ON DISTANCE CONTRACTS

SECTION ONE

Objective, Scope, Legal Basis and Definitions

Objective

ARTICLE 1 – (1) The objective of this Regulation is to set forth and govern the principles and procedures of implementation regarding distance contracts.

Scope

ARTICLE 2 - (1) This Regulation shall be applicable for distance contracts.

(2) The provisions of this Regulation shall not be applicable forthe contracts regarding:

a) Financial services,

b) Sales conducted through automated machines,

c) The use of a public phone with telecommunication operations,

ç) The services related to betting, draw, lottery and the like games of chance,

d) Formation, transfer and acquisition of real properties and the rights related to such properties,

e) Leasing of housing units,

f) Package tours,

g) Time-share properties, time-share vacation, long-term vacation service and the resale or exchange of the same,

ğ) The delivery of daily consumption goods such as food and beverages to the house or the office of the consumers as apart of the regular deliveries of the supplier,

h) Passenger transportation services with the obligation of information as provided within sub-paragraphs (a), (b) and (d) of the first paragraph of article 5 as well as the the obligations provided within Articles 18 and 19 being reserved,

ı) Installation, maintenance and repair of goods, and

i) Nursing home services, such social services aimed at the supporting of families and individuals as giving care to children, senior individuals and sick individuals.

Legal Basis

Rest

ARTICLE 3 – (1) ) This Regulation has been issued on the basis of Articles 48 and 84 of the Act No. 6502, enacted on 7/11/2013, on the Protection of Consumers.

Definitions

ARTICLE 4 - 1) The following terms mentioned in this Regulation shall have the following meanings for the purposes of the enforcement hereof;

a) Digital content: means any data offered digitally such as computer programs, applications, games, music, video and text,

b) Service: means the subject matter of any consumer transaction but supply of goods, which is conducted or warranted to be conducted in consideration of a price or interest,

c) Permanent data register: means any means or media such as short text message, electronic mail, internet, disk, CD, DVD, flash disk etc., which enables the data sent by or to the consumer to be recorded in the manner to allow for the review of the same for a reasonable period of time as suitably for the intended purpose of such data, and to be copied without alteration and also allows for access to such data in exact,

ç) Act: means the Act No. 6502 on Consumer Protection.

d) Goods: means any movable commodities, real properties for residential or vacation purposes as well as any software, audio, video and the like intangible goods, which are subject to commercial transaction,

e) Distance contract, means a contract executed without the concurrent physical presence of the supplier or provider and the consumer within the framework of a system developed for the purpose of the remoter marketing of goods or services through the utilization of the means of remote communication until and including the moment of the actual execution of the contract between the parties.

f) Provider: means any natural person or legal entity, including public legal entities, who offers services for commercial or professional purposes, or who acts on behalf or account of such natural persons or legal entities,

g) Supplier: Any natural person or legal entity, including public legal entities, who supplies goods for commercial or professional purposes, or who acts on behalf or account of such natural persons or legal entities,

ğ) Consumer: means any natural person or legal entity, which acts with non-commercial or non-professional purposes,

h) Remote communication facility: means any facility or medium, which allows for the execution of a contract without the parties' being physically present at the same location, such as a letter, catalog, facsimile, phone, radio, television, electronic mail message, SMS and the Internet,

ı) Side contract: means any contract regarding any goods or service supplied or provided to the consumer in addition to any goods or service, which is supplied or provided under a distance contract, by the supplier, the provider or any third party.

SECTION TWO

Obligation to inform prior to contract

Pre-contract information

ARTICLE 5 – (1) The consumer should strictly be informed by the supplier or the provider, the scope of which information shall include any and all of the matters listed below, in advance of the agreement thereby to the distance contract or any offer corresponding thereto.

a) Main characteristics of the goods or service, being the subject matter of the contract,

b) The full name or the trade name as well as MERSIS (Central Registration System) of the supplier or the provider,

c) The full address, phone number and other similar contact details of the supplier or the provider, which would enable the consumer to rapidly contact the supplier or the provider, as well as the identity details and the address of the person, who acts on behalf of the supplier or the provider, if any,

ç) In the event the supplier or the provider has different contact details than those to be provided under sub-paragraph (c) for the consumer to communicate any complaint thereof, information regarding such contact details,

d) In the cases, where the total price of the goods or the service, including taxes, cannot be calculated in advance due to the nature of the same, the method applied for the calculation of the price, and any and all transportation, delivery and other similar additional expenses, if any, and the information as to the likelihood that additional expenses could be payable in the event should such expenses cannot be calculated in advance,

e) In the cases, where the usage fee in respect of the remote communication facility at the stage of the execution of the contract cannot be calculated on the basis of the ordinary fee tariff, the additional cost charged on the consumer,

f) The details regarding the payment, delivery and performance as well as the warranties in relation to the same, if any, and the methods of the supplier or the provider for the addressing and resolution of the complaints,

g) In the cases, where the right of withdrawal is at issue; the terms and the period of and the procedures applicable for the exercise of such right, and the details of the carrier, which the supplier contemplates to employ for return purposes,

ğ) The full address, facsimile number or electronic mail details for the service of the notice of withdrawal,

h) In the cases, where the right of withdrawal cannot be exercised under Article 15; information as to the fact that the consumer may not exercise the right of withdrawal or as to the circumstances, under which the consumer could forfeit her/his right of withdrawal,

ı) The security deposits or other financial collaterals, which the consumer should pay, provide or place upon the request of the supplier or the provider, if any, and the terms regarding the same,

i) The technical protection measures that could affect the functionality of digital contents, if any,

j) Information as to with what hardware and software the digital content can operate, which the supplier or the provider knows or is reasonably expected to know,

k) Information as to the consumers' entitlement to file any application thereof regarding any dispute with the Consumer Court or the Arbitration Committee for Consumer Problems.

(2) The details provided within the first paragraph form an integral part of the distance contract, and may not be altered unless the parties agree otherwise.

(3) In the event the supplier or the provider fails to fulfill its obligation to inform the consumer about the additional costs and expenses as provided within sub-paragraph (d) of the first paragraph; the consumer shall not be obliged to bear such additional costs and expenses.

(4) The total price, which is mentioned within sub-paragraph (d) of the first paragraph, should, in the case of contracts of indefinite duration or the subscription contracts of definite duration, strictly include the total sum of the expenses for each billing period.

(5) In the case of contracts executed by way of auction or by way of auction by underbidding; the details and information regarding the party, who holds the auction, may be provided instead of the details and information of sub-paragraphs (b), (c) and (d) of the first paragraph.

(6) The burden of proof for the pre-contract information of the consumer shall be incumbent upon and borne by the supplier or the provider.
Method of information prior to contract

ARTICLE 6 – (1) The consumer should strictly be informed on all of the matters, which are provided within the first paragraph of Article 5, by the supplier or the provider in printed form through a comprehensible wording, clearly, simply and legibly in characters at minimum twelve font size, through a permanent data register.

(2) In the cases, where the distance contract is executed through the Internet; the supplier or the provider should strictly

a) indicate, explicitly and separately, the details and information, which are provided within the sub-paragraphs (a), (d), (g) and (h) of the first paragraph of Article 5, as a whole immediately in advance of the consumer's entering into the payment obligation, save for the obligation to inform as provided within the same paragraph, and

b) state, clearly and comprehensibly, whether or not any shipping restriction is applicable, and the acceptable instruments of payment in advance of the placement by the consumer of an order at the latest.

(3) In the cases, where the contract is executed through voice communication; the supplier or the provider shall be obliged to inform the consumer, clearly and comprehensibly, about the matters, which are provided within the sub-paragraphs (a), (d), (g) and (h) of the first paragraph of Article 5, immediately before the placement of an order, and submit the consumer all of the details and information, which are provided within the first paragraph of Article 5 in writing not later than the delivery of the goods or the performance of the service.

(4) In the cases, where the distance contract is executed through a medium, in which the information about the order is provided within a restricted space or within a limited period of time; the supplier or the provider shall be obliged to inform the consumer, clearly and comprehensibly, about the matters, which are provided within the sub-paragraphs (a), (b), (d), (g) and (h) of the first paragraph of Article 5, immediately before the placement of an order, and submit the consumer all of the details and information, which are provided within the first paragraph of Article 5 in writing not later than the delivery of the goods or the performance of the service.

(5) In respect of the contracts, which are executed through the methods, which are provided within the third paragraph and the fourth paragraph, and which is regarding the sales of services, which are performed instantly; it shall suffice for the consumer to be informed immediately in advance of the placement of order clearly and comprehensibly only about the matters, which are provided within the sub-paragraphs (a), (b), (d) and (h) of the first paragraph of Article 5.
Confirmation of the pre-contract information

ARTICLE 7 – (1) The supplier or the provider shall be obliged to ensure that the consumer confirms her/his receipt of the pre-contract information through the methods, which are provided within Article 6, in such fashion that is suitable for the relevant remote communication facility employed. Otherwise, the relevant contract shall be considered not to have been executed.

Other obligations related to pre-contract information

ARTICLE 8 – (1) The supplier or the provider shall be obliged to clearly and comprehensibly inform the consumer, immediately prior to the confirmation by the consumer of the order thereof, that such confirmation would lead to the creation of a payment obligation for the consumer. Otherwise; the consumer shall not be bound by the order.

(2) In the event the consumer is called via phone by the supplier or the provider for the purpose of the execution of a distance contract; the supplier or the provider should, at the beginning of each call,  disclose the respective identity thereof or, should it be calling on behalf or on the account of of any other party, the identity of such other party, and the commercial purpose of the call.

PART THREE

Exercise of the Right of Withdrawal and Obligations of the Parties

Cayma hakkı

ARTICLE 9 – (1) The consumer shall be entitled to withdraw from the consumer loan contract without suggesting a just cause and being obliged to pay penal clause within a period of fourteen days.

(2) The period for the exercise of the right of withdrawal shall commence on the date of execution of the contract in the case of contracts regarding the performance of a service, and on the date of receipt of the delivery of the good by the consumer or the third party designated by the consumer in the case of contracts regarding the delivery of goods. However; the consumer may also exercise the right of withdrawal throughout the period between the date of execution of the contract and the date of delivery of the goods.

(3) The period for the exercise of the right of withdrawal shall be considered to commence;

a) on the date, on which the the consumer or the third party designated by the consumer receives the last item of the goods in the case of the goods, which are ordered within the scope of a single order but are delivered in the form of multiple items,

b) on the date, on which the the consumer or the third party designated by the consumer receives the last part, in the case of the good, which are comprised of multiple parts, and

c) on the date, on which the the consumer or the third party designated by the consumer receives the first good, in the case of the contracts, under which the goods are to be delivered on a regular basis throughout a specific period of time.

(4) The delivery of the goods by the supplier to the carrier shall not be considered as a delivery to the consumer.

(5) In respect of the contracts, under which goods are to be delivered in combination with the performance of services; the provisions on the right of withdrawal regarding delivery of goods shall apply.

Deficient information

ARTICLE 10 – (1) The supplier or the provider shall be obliged to prove the information of the consumer on such right of withdrawal. Such notification period shall not be binding on the consumer for the exercise of the right of withdrawal unless the consumer is duly informed as appropriate on the right of withdrawal. In any case, such period of time shall expire one year after the expiration of the period of time allowed for the exercise of the right of withdrawal.

(2) In the event proper information is provided about the right of withdrawal within a period of one year, the period of fourteen days for the right of withdrawal shall commence to elapse as of the date of provision of such proper information.

Exercise of the right of withdrawal

ARTICLE 11 – (1) The exercise of the right of withdrawal shall only require for the consumer to deliver the supplier or the provider the notice of exercise of the right of withdrawal in printed form or through a permanent data register prior to the expiration of the period for such exercise.

(2) The consumer may exercise the right of withdrawal either by way of the form, which is annexed herewith, or issuing and filing an explicit statement on her/his decision to withdraw from the contract. The supplier or the provider may also offer an option on the respective website thereof for the consumer to be able to complete the said form or submit a statement of withdrawal online. In the event the consumer is offered the option to withdraw from the contract through the website, the supplier or the provider should strictly communicate to the consumer the confirmation of its receipt of the request for withdrawal from contract, which the consumer submits thereto, immediately.

(3) In the case of sales conducted by way of voice communication; the supplier or the provider shall be obliged to submit the consumer the form, which is annexed herewith, not later than the delivery of the goods or the performance of the service. In the case of such sales, the consumer may exercise its right of withdrawal by way of the completion and submission of such form or through the methods, which are provided within the second paragraph.

(4) The burden of proof for the exercise of the right of withdrawal as provided herein shall be incumbent upon and borne by the consumer.

Obligations of the supplier or the provider

ARTICLE 12 – (1) The supplier or the provider shall be obliged to refund any and all amounts collected from the consumer, including the costs of delivery of the goods to the consumer, if any, to the consumer within a period of fourteen days as of the date of receipt thereby of the notice of exercise by the consumer of the right of withdrawal.

(2) The supplier or the provider shall be obliged to repay any and all amounts, which are provided to be refunded within the first paragraph, at once, in such fashion that is suitable to the payment instrument, which the consumer may have used whilst buying the relevant goods, and without leading to any charges, expenses or obligations for the consumer.

(3) In the event, as a part of the exercise of the right of withdrawal, the relevant goods are shipped back to the supplier through the agency of the carrier, which is designated by the supplier for the return process, under the provisions of sub-paragraph (h) of the first paragraph of Article 5; the consumer shall not be held liable for the cost of return shipping. On the other hand; in the cases, where the supplier does not designate any carrier for the return process as a part of the pre-contract information; any amount shall not be claimed from the consumer in relation to the cost of return shipping. In the event the carrier, which is designated for the return shipping process as a part of the pre-contract information, does not have a branch at the location, where the consumer is located; the supplier shall be obliged to ensure the goods, which are intended to be returned, to be picked up from the consumer without claiming any additional charge.

Obligations of the consumer

ARTICLE 13 – 1) Unless the supplier or the provider proposes the consumer to pick up the goods to be returned, the consumer shall be obliged to ship such goods back to the supplier or the provider or the person authorized thereby within a period of ten days as of the date of its filing of the notice of its exercise of the right of withdrawal.

(2) The consumer shall not be liable for any alterations and deteriorations of the goods, which may have emerged throughout the withdrawal period, in the it event is uses the same in conformity to the operation, technical specifications and the operational instructions of the goods during such period.

Effect of the exercise of the right of withdrawal on side contracts

ARTICLE 14 – (1) Without prejudice to the provisions of Article 30 of the Act, the side contracts shall be terminated automatically in the event the consumer exercises the right of withdrawal. In that case; the consumer shall not be obliged to pay any costs and expenses, indemnities or penal clause amount except for the cases, which are provided within the second paragraph of Article 13.

(2) The supplier or the provider should immediately notify any third party, who is a party to any side contract, of the consumer's exercise of the right of withdrawal.

Exceptions to the right of withdrawal

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

a) The contracts regarding such goods or services, the price of which vary depending on the fluctuations on financial markets and is not under the control of the supplier or the provider.

b) The contracts regarding the goods, which are prepared in a customized manner to address the requests or personal needs of the consumer.

c) The contracts regarding the goods, which are of perishable nature or the service live of which could expire.

ç) The contracts regarding the delivery of such goods, such protective elements of which as packaging, tape, seal and pack have been opened or torn following delivery, and the returning of which is, therefore, not appropriate for health and hygiene concerns.

d) The contracts regarding the goods, which have been mixed with other products following delivery and can no longer be extracted out due to the nature thereof.

e) The contracts regarding books, digital contents and computer-related consumable supplies offered physically in the event such protective elements of the same as packaging, tape, seal and pack have been opened or torn following their delivery.

f) The contracts regarding the delivery of periodical publications such as newspapers and magazines except for those, which are supplied under a subscription contract.

g) The contracts regarding accommodation, carriage of furniture or other objects, car rental, supply of food and beverages and recreational leisure time activities, which should be performed on a specific date or during a specific period of time.

ğ) The contracts regarding such services that are instantly performed electronically or intangible goods, which are instantly delivered to the consumer.

h) The contracts regarding the services, the performance of which is commenced upon the consumer's confirmation before the expiration of the prescribed period for the exercise of the right of withdrawal.

SECTION FOUR

Miscellaneous Provisions

Performance and delivery

ARTICLE 16 – (1) The supplier or the provider shall be obliged to fulfill its contractual obligations within the such period of time that is warranted thereby as of the date of receipt by the same of the order placed by the consumer. Such period may not exceed thirty days under any circumstances whatsoever in the case of the sales of goods.

(2) In the event the supplier or the provider fails to perform its obligations, which are provided within the first paragraph, the consumer may terminate the contract.

(3) In the event of the termination of the contract; the supplier or the provider shall be obliged to refund any and all amounts, which may have been collected form the consumer, including the delivery costs, if any, along with the legal interest, which shall be accrued in accordance with the provisions of Article 1 of the Act No. 3095 on Legal Interest and Default Interest, enacted on 4/12/1984, and return any and all negotiable instruments, which burden the consumer with debt, as well as any and all other similar documents, if any, to the consumer within a period of fourteen days as of its receipt of the notice of termination.

(4) In the cases, where the delivery of the ordered goods or the performance of the ordered service becomes impracticable; the supplier or the provider shall be obliged to notify the consumer of such impracticability in writing or through a permanent data register within not later than three days as of its becoming aware of the same, and refund any and all amounts, which may have been collected form the consumer, including the delivery costs, if any, to the consumer within not later than fourteen days as of the date of such notification. The unavailability of the goods on the stock shall not be considered as an impracticable of the performance of the obligations related to the ordered goods.

Liability for losses and damages

ARTICLE 17 – (1) The supplier shall be liable for any losses of and damages to the goods, which could occur until the delivery of the same to the consumer or any third party other than the carrier, whom the consumer may designate..

(2) In the cases, where the consumer requests the goods to be shipped through any other carried than the designated carrier of the supplier, the supplier shall not be liable for any losses of or damages to the goods, which could occur as of the time the goods are delivered to such other carried.

Phone usage fee

ARTICLE 18 – (1) In the cases, where the supplier or the provider allocates a phone line in order to enable the consumers to contact the supplier or the provider in relation to a contract that has been executed; the supplier or the provider may not select a more costly tariff than the ordinary fee tariff for such line.

Additional payments

ARTICLE 19 – (1) In order for any additional charge other than the main contract price, which arises out of the contractual obligations and on which the parties have agreed, to be claimed from the consumer; the explicit consent on the matter of the consumer should strictly be obtained prior to the execution of the contract.

(2) In the event the consumer has paid any amount due to the fact that any option, which lead to additional or extra payment obligations, have been offered as selected in default without the consumer's explicit consent having been obtained, the supplier or the provider shall be obliged to refund such amounts to the consumer immediately.

Retention of information and burden of proof

ARTICLE 20 − (1) The supplier or the provider shall be obliged to retain the information and documents related to each transactions in respect of the matters of the right of withdrawal, information, delivery and any other matter governed under the present Regulation for a period of three years.

2)The parties, who act as intermediary for the supplier or the provider for the purpose of the execution of distance contracts through the utilization of the means of remote communication or through making the same available to the concerned within the framework of a system developed by such parties, shall be obliged to keep and retain records of the transactions conducted with the supplier or provider due to the matters provided herein for a period of three years, and to submit the same to the concerned entities, institutions, organizations and consumers upon request.

(3) The supplier or the provider shall be obliged to prove that any intangible goods delivered to or services performed for the consumer electronically are free of any defects.

SECTION FIVE

Miscellaneous and Final Provisions

Abrogated regulations

ARTICLE 21 – (1) The Regulation on the Regulation on Distance Contracts, which was promulgated within the issue No. 27866, dated 6/3/2011, of the Official Gazette is hereby abrogated.

Effectiveness

ARTICLE 22 – (1) This Regulation shall come into force three months after the date of publication thereof.

Enforcement

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

APPENDIX

SAMPLE WITHDRAWAL FORM

(This form shall be completed and filed only in the event you intend to exercise your right of withdrawal from the contract.)

-To: (This field, which is to be completed by the supplier or the provider, should include the full name, trade name, address and the facsimile number, if any, as well as the email address of the supplier or the provider.)

- Date of order placement or delivery:

- Good or service subject to the right of withdrawal:

- Price of the good or service subject to the right of withdrawal:

- Full name of the consumer:

- Address of the consumer:

- Signature of the consumer: (if submitted in printed copy form only)

- Date: