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?
47Liability 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.