The legal obligation for Australian businesses to provide refunds

In Australia, the main piece of legislation governing the supply of goods and services is the Competition and Consumer Act 2010 (Cth) (CCA), which incorporates the Australian Consumer Law (ACL) in Schedule 2.  These obligations apply in addition to the terms and conditions by which a business trades.  The CCA regulates the interaction between businesses and consumers and also between businesses.  How the CCA applies to any particular transaction will depend on whether goods or services are supplied to a consumer.[1]  The effect of a transaction being classed as a consumer transaction is that the consumer guarantee provisions in the CCA will apply. [Read more…]

Software licences held to be “goods” under ACL

Software licences have been held to be “goods” under the Australian Consumer Law (ACL) by the Federal Court of Australia in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196.  The case also clarified the position of “choice of law” clauses and highlighted the difficulties of contracting out of ACL consumer guarantees. [Read more…]

Are software developers liable for defects in their software?

The question of whether software developers are (or ought to be) legally liable for bugs, errors, security vulnerabilities, or other defects in the software which they develop, and the extent to which they are (or ought to be) liable for the loss flowing from those defects, is not a new one and has been the subject of significant legal and academic debate since at least the 1980s.  This article considers the liability of software developers in negligence and under the Australian Consumer Law (ACL), and also discusses whether insurance is available to offset these risks for the developer. [Read more…]

Legal risks inherent in the In-App Purchase business model

In the post smart phone environment, software developers and publishers are increasingly providing end users (Users) with the opportunity to make micro-transactions (In-App Purchases) within their software (App). Under this business model, the publisher or developer offers their App, or at least a limited version of it, to consumers at no upfront cost. Users then may have the opportunity to make In-App Purchases using real world currency, such as:

  • a one off fee to access an advertisement free version of the App;
  • access to additional content within the App;
  • a digital currency for use within the App; or
  • consumable items such as extra lives or turns in games.

The In-App Purchase model has proven successful for many publishers, but as with all business models, it comes with its fair share of legal risk. [Read more…]

Unfair contract terms, small businesses and changes to the Australian Consumer Law

Given the often limited resources available to small businesses, it can be difficult to keep informed about the myriad of legal obligations with which they must comply.  Under section 23 of the Australian Consumer Law (ACL), businesses must ensure that they comply with the obligation not to impose “unfair contractual terms” on consumers. [Read more…]

Federal Circuit Court invalidates ‘no refunds’ clause

In a recent judgment (Ferme v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384), the Federal Circuit Court held that a term of a cruise company’s standard conditions, which allowed the company to cancel a cruise for a wide range of reasons without giving any refunds to its passengers, was an ‘unfair term’ under the Australian Consumer Law (ACL) and therefore void. [Read more…]

ACCC guidance on country of origin labelling for businesses

The Australian Competition and Consumer Commission (ACCC) have released guidelines to assist businesses with country of origin labelling. The Competition and Consumer Act (CCA) prescribes serious consequences for businesses that make false or misleading claims in regards to the origin of goods.

[Read more…]

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