This one seems to have slipped under the radar somewhat - not seen anything on the news, but it seems to cover a lot of stuff, and impacts consumers and businesses.
I have to read through it, at least the sections that impact us, and make sure our terms match up properly. We have always tried to be fair to customers, so I expect only minor changes.
I'll probably post more when I work out some of the implications, however, skimming it I have found one bit I don't quite follow. Section 65: Bar on exclusion or restriction of negligence liability.
It starts off sensibly with "A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence." which is pretty bog standard stuff and very simple. Obviously this is the sort of thing the public liability insurance helps cover anyway.
But then it goes not to "Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice."
That I am not sure of - it is not clear to me if excluding consequential losses, etc, from negligence is simply not allowed any more, of if it is allowed but not merely by it being a term or something agreed. It seems odd wording, and sounds like it would be allowed if you jump through some sort of hoops to allow it, but it is not clear to me what. i.e. do we have to spell out "I agree to the risk that there may be consequences for a failure of this service that I cannot expect A&A to pay me" or something - i.e. agreeing the risk as opposed to agreeing the "term" in the agreement?
When selling a service, one of the key things that can impact the cost of providing that service is the risk factors taken by the service provider and the customer. I am all in favour of such things be very clear and understood up front, but it would not be appropriate to disallow limiting liability. After all, even with insurance the insurance may have a limit on the amount covered.
Obviously one tries to ensure one uses reasonable skill and care, and is not negligent, but at the end of the day mistakes can happen. This clearly includes mistakes as it is immaterial "whether a breach of duty or obligation was inadvertent or intentional".
If we sell a service for £1/month, as a lot of services are, and a mistake on our part (i.e. negligence) stops that service working, at present we offer a "money back guarantee", in that we will refund what was paid for the service for the time it does not work. This is at one (low) end of the level one might expect in compensation for an error, but I do not think it that unfair, as we go to some lengths to make it very clear to customers so that they can decide it is worth the risk to buy a cheap service. The problem is if such a service has an issue, perhaps a domain service or a VoIP service is out for a day due to a mistake, could a customer claim to have lost out on some high paying job offer and expect us to compensate to the tune of hundreds of thousands of pounds in consequential losses?
So, I am trying to work out if we are still allowed to limit liability to consumers, or not, and if we are, how we do it. If not, we'll need to look at some better insurance and consequentially increasing our prices rather a lot to have unlimited liability for simple mistakes.
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