FPCOB 5.1 Distance marketing

This chapter applies to a firm:

1. (1)

   in relation to its regulated funeral plan activity; and

2. (2)

   that carries on any distance marketing activity from an establishment in the United Kingdom, with or for a consumer in the United Kingdom.

A firm must provide a consumer with the distance marketing information (FPCOB 5 Annex 2R) in good time before the consumer is bound by a distance contract or offer.

A firm must ensure that the distance marketing information, the commercial purpose of which must be made clear, is provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions, and the legal principles governing the protection of those who are unable to give their consent.

When a firm makes a telephone call to a consumer, it must make its identity and the purpose of its call explicitly clear at the beginning of the conversation.

A firm must ensure that the information on contractual obligations to be communicated to a consumer during the pre-contractual phase conforms with the contractual obligations which would result from the law presumed to be applicable to the distance contract if that contract is concluded.

A firm must communicate to the consumer all the contractual terms and conditions and the information referred to in the distance marketing disclosure rules in writing or another durable medium available and accessible to the consumer in good time before conclusion of any distance contract.

The performance of the distance contract may only begin after the consumer has given their approval.

This section does not apply to a distance contract to act as a funeral plan intermediary, if the distance contract is concluded merely as a stage in the provision of another service by the firm or another person.

In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this section only apply to the initial agreement.

If there is no initial service agreement but the successive operations or separate operations of the same nature performed over time are performed between the same contractual parties, the distance marketing disclosure rules will only apply:

1. (1)

   when the first operation is performed; and

2. (2)

   if no operation of the same nature is performed for more than a year, when the next operation is performed (the next operation being deemed to be the first in a new series of operations).

1. (1)

   In the case of a telephone call, and subject to the explicit consent of the consumer, only the abbreviated distance marketing information (FPCOB 5 Annex 3R) needs to be provided during that communication.

2. (2)

   However, unless another exemption applies (such as the exemption for means of distance communication not enabling disclosure), a firm must still provide the distance marketing information (FPCOB 5 Annex 2R) in writing or another durable medium available and accessible to the consumer in good time before conclusion of any distance contract.

A firm may provide the distance marketing information (FPCOB 5 Annex 2R) and the contractual terms and conditions in writing or another durable medium immediately after the conclusion of a distance contract if the contract has been concluded at a consumer’s request using a means of distance communication that does not enable the provision of that information in that form in good time before conclusion of any distance contract.

At any time during the contractual relationship the consumer is entitled, at their request, to receive the contractual terms and conditions on paper. The consumer is also entitled to change the means of distance communication used unless this is incompatible with the contract concluded or the nature of the service provided.

1. (1)

   A firm must not enforce, or seek to enforce, any obligations under a distance contract against a consumer, in the event of an unsolicited supply of services. The absence of a reply does not constitute consent.

2. (2)

   This rule does not apply to the tacit renewal of a distance contract.

If a consumer purports to waive any of the consumer’s rights created or implied by the rules in this section, a firm must not accept that waiver, nor seek to rely on or enforce it against the consumer.

If a firm proposes to enter into a distance contract with a consumer that will be governed by the law of a country outside the United Kingdom, the firm must ensure that the consumer will not lose the protection created by the rules in this section.