Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/72

 to a reasonable consumer that "as a matter of contract you cannot claim a refund, although you might be able to obtain a refund as a result of legislation or some other regime". A reasonable consumer would be unlikely to attempt to reconcile the capitalised terms in the billing section of the 2011/2012 SSA with the possibility adverted to in the final (uncapitalised) cl 15 of the SSA that a provision of the SSA might be unenforceable (but would be enforced to the maximum extent possible). The message conveyed by the SSA to the reasonable Australian consumer was that Steam fees were "not refundable in whole or in part" under any conditions.

242 The No Entitlement to Refund Representation was misleading because, pursuant to ss 259(3) and 263(4) of the Australian Consumer Law, consumers were entitled to elect to have a refund in the event of (i) a failure to comply with the consumer guarantee of acceptable quality in s 54 of the Australian Consumer Law that cannot be remedied or a major failure and (ii) where the consumer had rejected the goods. Section 64 of the Australian Consumer Law had the effect that this consumer guarantee could not be excluded or restricted.

243 As to the 2012/2013 and 2013 SSAs, there are three relevant differences in the text. But none of these differences causes a different conclusion to be reached. The first two differences are as follows:

(1) These two SSAs contain the additional statement, also in capitals in the relevant clause that fees are not refundable in whole or in part "except as expressly set forth in this agreement". This militates further against Valve s submission. It emphasises to the reasonable consumer that unless an express exception can be found in the agreement then fees will not be refunded. A reasonable consumer also would be unlikely to consider the general, uncapitalised, miscellaneous clause in the final paragraph, which does not expressly refer to any possibility of a refund, as an exception "expressly set forth in this agreement".

(2) The two SSAs contain specific exclusions for EU customers. They provide (in the cl 3 "billing" clause) that if the consumer is an EU subscriber the consumer has a right to withdraw from the purchase without charge until a particular time, and also in a separate clause "Disclaimers: Limitation of Liability: No Guarantees" that the section does not reduce the EU consumers' mandatory consumers' rights under the laws of a local jurisdiction. There is no such provision for any other jurisdiction, including Australia. This further reinforced the message that no refunds would be provided.