Nowadays is sometimes feels that the T&Cs of a particular service provider secures the latter from any potential loss and gives the right to do pretty much everything with consumer being the weaker party. However, don’t be tricked – if the service provider clearly impaired your rights and business, you can challenge the “so-called” absolute T&Cs and claim incurred damages.
I. Long story short
Recently I had a dispute with the company Wix.com – they provided defective services, which eventually caused me more than a great headache.
First of all, I contacted them asking for an explanation of why they acted in a way, to harm my business. At the same time I asked to refund me the service fee that I paid for an annual premium plan. Wix.com provided me with a vague explanation, but rejected to refund the money I initially paid.
After the first approach didn’t work, I contacted Wix.com using a more legit way – addressing a written letter. This time I not only asked to refund me the service fee, but taking into account their cynical attitude towards me, I also asked to cover me non-pecuniary damages, that I was ready to let it slide in the beginning. At this time, they agreed to refund me the service fee, but refused to cover my non-pecuniary damages.
Finally, after still not getting what I have asked for, I reached out to Wix.com for the third time. I backed up my demands with legal provisions, that provide me a right to be compensated because of non-contractual liability. Finally, after 4 months of continuing communications Wix.com agreed to satisfy my demands.
II. Legal situation
Here it is necessary to mention two sections of Wix.com T&Cs.
Firstly, even though in the section Disclaimer Of Warranties it is stated:
“Wix may, at its sole discretion (however it shall have no obligation to do so), screen monitor and/or edit any User Platform and/or User Content, at any time and for any reason, with or without notice.”
However, it doesn’t mean that the service provider can do whatever it wants. If they published an unfinished draft website without any particular reason, they are liable for the damage suffered (e.g. impaired reputation because of a faulty website, existing and potential customers refusing your services).
Secondly, Wix.com has the Limitation of Liability clause in their T&Cs:
“To the fullest extent permitted by law in each applicable jurisdiction, Wix, its officers, directors, shareholders, employees, affiliates and/or agents shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from <…>“.
Although, it looks pretty scary and you might think that they are not liable for anything, however, luckily, that’s not true. The most important part in the paragraph above is the following: “To the fullest extent by law in each applicable jurisdiction <…>”. That means that if one or another jurisdiction laws provides contractual or non-contractual liability of defaulted party, you still have the right to be compensated if a company provides you with defective services.
Since I am located in Lithuania, local Civil Code provides two types of civil liability:
- contractual and
- non-contractual liability.
Under the Civil Code, non-contractual liability defines as follows:
“Non-contractual (delictual) liability is a pecuniary obligation which is not related with contractual relations, except is cases where it is established by laws that delictual liability shall also result from damage related with contractual relations“.
In my dispute with Wix.com, I suffered damages that arose from a non-contractual liability. Since these both legal grounds are established in Lithuanian legislation, therefore Wix.com limitation of liability clauses are invalid here.
III. To sum it up
- Limitation of liability clauses do not provide absolute protection from the claims;
- Usually T&C describes only contractual liability between contract parties, however, the non-contractual liability almost always is provided by the law;
- Distinguish between contractual and non-contractual liability (in order to do it properly, consider to hire a lawyer);
- If you think that a service provider or a seller infringed your rights, which was the reason of damaging your business, contact defaulted party and clearly explain your demands.
P.S. This article is contributed only for informative purposes and is aimed to foster consumer awareness about their rights when dealing with any digital services provider. However, the situation described above actually happened.