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Ts&Cs of e-books platforms excluding warranties for the e-books sold or for the download of movies have been deemed in breach of regulations on unfair terms in consumer contracts and therefore not valid.
As previously mentioned, the Italian competition authority has also jurisdiction on the qualification as “unfair” (and therefore null and void) of clauses in Business to Consumer (B2C) agreements and in this circumstance held that the provisions of Ts&Cs of an e-book platform excluding any liability and warranty by the platform provider in relation to the sale of e-books to sold “as it is” and for which liability could arise only in the cases of gross negligence and wilful misconduct were unfair. Indeed, the provisions limiting the possibility of liability claims for contractual breaches to the cases of gross negligence and wilful misconduct were not valid since they were creating an unbalance of the liabilities between the parties.
However, the most interesting part of the decision relates to the qualification of e-books as “consumer goods” for the purposes of the EU Sale of Consumer Goods Directive. On the basis of such qualification, the company managing the e-book platform had to provide the statutory 2 years warranty to customers and therefore the warranty exclusion clauses mentioned above were invalid. This decision is even more interesting as the same authority on a similar case extended the 2 years warranty also to services relating to the download of movies from Internet platforms.
However, the most interesting part of the decision relates to the qualification of e-books as “consumer goods” for the purposes of the EU Sale of Consumer Goods Directive. On the basis of such qualification, the company managing the e-book platform had to provide the statutory 2 years warranty to customers and therefore the warranty exclusion clauses mentioned above were invalid. This decision is even more interesting as the same authority on a similar case extended the 2 years warranty also to services relating to the download of movies from Internet platforms.
Despite the fact that e-books and movies as any software are licensed rather than sold, according to the authority, the guarantees provided for the sale of consumer goods had to be extended to them giving some guidelines on their qualification in a sector with a very limited number of court precedents. Also, this means that American style e-commerce or software license Ts&Cs excluding any liability will be deemed null and void and consumers shall be informed of their statutory rights.
This decision is likely to have a relevant impact not only on e-commerce contracts but also on software license agreements and any B2C contract. And, as usual if you want to discuss about that feel free to contact me, Giulio Coraggio.
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