PART 1Consumer contracts for goods, digital content and services

CHAPTER 3Digital content

Can a trader contract out of statutory rights and remedies under a digital content contract?

I147Liability that cannot be excluded or restricted

1

A term of a contract to supply digital content is not binding on the consumer to the extent that it would exclude or restrict the trader's liability arising under any of these provisions—

a

section 34 (digital content to be of satisfactory quality),

b

section 35 (digital content to be fit for particular purpose),

c

section 36 (digital content to be as described),

d

section 37 (other pre-contract information included in contract), or

e

section 41 (trader's right to supply digital content).

2

That also means that a term of a contract to supply digital content is not binding on the consumer to the extent that it would—

a

exclude or restrict a right or remedy in respect of a liability under a provision listed in subsection (1),

b

make such a right or remedy or its enforcement subject to a restrictive or onerous condition,

c

allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or

d

exclude or restrict rules of evidence or procedure.

3

The reference in subsection (1) to excluding or restricting a liability also includes preventing an obligation or duty arising or limiting its extent.

4

An agreement in writing to submit present or future differences to arbitration is not to be regarded as excluding or restricting any liability for the purposes of this section.

5

See Schedule 3 for provision about the enforcement of this section.

6

For provision limiting the ability of a trader under a contract within section 46 to exclude or restrict the trader's liability under that section, see section 62.