Current as of: 2011
(1) A purchase of consumer goods or services ordered as a result of a commercial telephone solicitation as defined in this part, if not followed by a signed written contract, is not final. If a contract is not made in compliance with this section, it is not valid and enforceable against the purchaser. The contract made pursuant to a commercial telephone solicitation shall:
(a) Be reduced to writing and be signed by the purchaser.
(b) Match the description of the goods or services as that principally used in the telephone solicitation.
(c) Contain the name, address, telephone number, and registration number of the commercial telephone seller and the salesperson, the total price of the contract, and a detailed description of the goods or services being sold.
(d) Contain the value or worth of any item, good, or service specified in s. 501.614, and the basis for the valuation.
(e) Contain all terms and conditions a purchaser must satisfy in order to receive any item, good, or service specified in s. 501.614.
(f) Contain, if they are ascertainable, the odds, for a given purchaser, of receiving any item specified in s. 501.614.
(g) Contain, if a purchaser is to receive fewer than all the items specified in s. 501.614 described by the seller:
1. The manner in which the commercial telephone seller decides which item a given purchaser is to receive.
2. If they are ascertainable, the odds, for a given purchaser, of receiving each item described.
(h) Contain, in at least 12-point type, immediately preceding the signature, the following statement: "You are not obligated to pay any money unless you sign this contract and return it to the commercial telephone seller."
(i) Not exclude from its terms any oral or written representations made by the commercial telephone seller or salesperson to the purchaser in connection with the transaction.
(2) A commercial telephone seller who engages a salesperson to make, or cause to be made, a telephone sales call shall not make or submit any charge to the purchaser’s credit card account or make or cause to be made any electronic transfer of funds until after the commercial telephone seller receives from the purchaser a copy of the contract, signed by the purchaser, which complies with this section. The commercial telephone seller shall then send the purchaser a written confirmation of the sale.
(3) The written contract must contain an explanation of the purchaser’s rights under this section and a statement indicating when notice of cancellation should be sent. The purchaser may give notice of cancellation to the commercial telephone seller in writing within 3 business days after receipt of the confirmation. If the commercial telephone seller has not provided an address for receipt of such notice, cancellation is effective by mailing the notice to the department.
(4) Notice of cancellation by the commercial telephone seller shall be given by certified mail, return receipt requested, and shall be effective when mailed. Notice of cancellation given by the purchaser need not take a particular form and is sufficient if it indicates, by any form of written expression, the name and address of the purchaser and the purchaser’s stated intention not to be bound by the sale.
(5) If a commercial telephone seller violates the provisions of this part in making a sale, or fails to deliver an item within 30 calendar days, the contract is voidable by giving notice to the commercial telephone seller, and the purchaser is entitled to a return from the seller, within 14 days, of all consideration paid. Notice of cancellation given by the purchaser need not take a particular form and is sufficient given orally or in writing. Upon receipt by the purchaser of the consideration paid to the commercial telephone seller, the purchaser shall return to the commercial telephone seller the items received by the purchaser. Any cost of returning the items received by the purchaser shall be borne by the commercial telephone seller, by providing or guaranteeing payment for return shipping. If such payment is not provided or guaranteed, the purchaser may keep, without further obligation, the items received.
(6) A person who purchases goods or services pursuant to a solicitation governed by this part must be given a refund, credit, or replacement, at his or her option, if:
(a) The goods or services are defective, are not as represented, or if any item described pursuant to this part is not received as promised.
(b) He or she returns the goods or makes a written request for the refund, credit, or replacement within 7 days after he or she receives the goods, services, prize, or premium, whichever is received later. A return or request is timely if shipment is made or the request is postmarked, properly addressed and postage prepaid, within the time provided by this section.
(7) If a purchaser of goods returns only a portion of the goods, the refund, credit, or replacement required by this section may be prorated accordingly.
(8) The refund, credit, or replacement required by this section must be guaranteed by the commercial telephone seller who made the sale, regardless of whether payment for the goods or services is made to that person.
(9) Any contract, agreement to purchase, or written confirmation executed by a seller which purports to waive the purchaser’s rights under this part is against public policy and shall be unenforceable, provided that an agreement between a purchaser and commercial telephone seller to extend the delivery time of an item to more than 30 days shall be enforceable if the commercial telephone seller has a reasonable basis to expect that he or she will be unable to ship the item within 30 days and if the agreement is included in the terms of the written confirmation.
(10) Where a contract or agreement to purchase confers on a purchaser greater rights to cancellation, refund, or return than those enumerated in this part, such contract shall be enforceable and not in violation of this part, provided that all rights under such a contract or agreement to purchase must be specifically stated in a written confirmation sent pursuant to this section.
(11) The provisions of this section shall not reduce, restrict, or eliminate any existing rights or remedies available to purchasers.
(12) Exempt from the requirements of subsections (1)-(5) is any sale in which the consumer is given a full refund for the return of undamaged and unused goods or a cancellation of services notice is given to the seller, within 7 days after receipt of the goods or services by the consumer, and the seller shall process the refund within 30 days after receipt of the returned merchandise by the consumer.
ss. 1, 2, ch. 91-237; s. 4, ch. 91-429; s. 5, ch. 94-298
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