Consumer complaint against Wanadoo about unfair contract terms

05 August 2004

Complainant: A member of the public
Complaint against: Wanadoo UK plc
Case opened: 2 August 2004
Case closed: 11 November 2004
Issue: Unfair contract terms
Relevant instrument: Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations").

Ofcom received a complaint in relation to a number of terms in Wanadoo's contract "AnyTime Terms of Use".

Ofcom has considered the terms and conditions of Wanadoo for it's AnyTime service. In particular Ofcom has considered the clauses below.

Clause 7.4 of Wanadoo's terms and conditions excludes all liability for errors, inaccuracies or omissions in relation to all information provided by it in connection with the Member Services. Further, it excludes liability (by making no representations or warranties) about the information included on its web pages (including links to third parties' web pages).

Ofcom regards this clause as potentially unfair under paragraph 1(b) of Schedule 2 to the Regulations, as it allows Wanadoo to inappropriately exclude or limit the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any contractual obligations.

Wanadoo has agreed to change the term, adding a new Clause 7.5, to:

"7.4 We make all reasonable efforts to ensure that all information provided by us in connection with the Member Services is accurate at the time of its inclusion however there may be errors, inaccuracies or omissions in respect of such information. If you are aware of any inaccuracies please call our Customer Support Number 0870 872 0099 and we shall make the necessary changes.

7.5 As part of the Service, we provide you with links to websites over which we have no operational control. If you access such websites you do so at your own risk. You shall be solely responsible for any decisions and actions taken based on the information contained on such websites."

Ofcom considered a number of sub-clauses under Clause 9 of the terms and conditions. These are set out below. Ofcom regards each of these sub-clauses as potentially unfair under paragraph 1(b) of Schedule 2 to the Regulations, as it allows Wanadoo to inappropriately limit the legal rights of the consumer vis-à-vis the seller of supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any contractual obligations.

Clause 9.2.1 of Wanadoo's terms and conditions states that it excludes Wanadoo's liability in contract, tort (including negligence) or otherwise for any damage or loss arising from the consequence of viruses received by the consumer via the services or of Wanadoo's failure to provide the services in accordance with the terms of use.

Wanadoo has agreed to change the term, replacing Clauses 9.2 and 9.2.1 with a new Clause 9.2:

"9.2 We screen emails against known viruses using a third party's antivirus software before we deliver emails to your Wanadoo email account. However, it cannot be guaranteed that all viruses, trojans or other items will be filtered out before infecting your computer. We recommend that you protect your computer by installing a virus checker and firewall."

Clause 9.2.2 of Wanadoo's terms and conditions states that it excludes Wanadoo's liability in contract, tort (including negligence) or otherwise, including for economic losses.

Wanadoo has agreed to change the term, replacing Clause 9.2.2 with a new Clause 9.3:

"9.3 We shall not be liable to you in contract, tort (including negligence) or otherwise for: any losses which are related to your business such as loss of data, loss of profits, loss of revenue, loss of business, opportunity or business interruption or any losses which are not reasonably foreseeable by us."

Clause 9.3 of Wanadoo's terms and conditions states that its liability in contract, tort (including negligence) or otherwise for any loss or damage suffered by the consumer in relation to the provision of the services is limited to £500 in any 12-month period.

Wanadoo has agreed to change the term, replacing Clause 9.3 with a new Clause 9.4:

"9.4 Except as set out in Clause 9.1 any liability we may have to you howsoever arising out of this Agreement is limited to £5000 in any 12 month period."

Clause 13.2 of Wanadoo's terms and conditions reserves the right of Wanadoo to transfer the benefit and burden of the agreement without prior consent. Also Wanadoo may sub-contract or assign the provision of the services to any person, without the consent of the consumer, including where this may be of detriment to the consumer.

Ofcom regards this clause as potentially unfair under paragraph 1(p) of Schedule 2 to the Regulations, as it allows Wanadoo to the possibility of transferring its rights and obligations under the contract, where this may later serve to reduce the guarantees for the consumer, without the latter's agreement.

Wanadoo has agreed to change the term to:

"13.2 Without affecting your right to terminate this agreement under Clause 8.2 or your other rights, we may transfer this Agreement to any person taking over the supply of the Services or sub-contract the provision of the Services or any part of it to any other person without your prior consent by giving you notice. We shall ensure that if we sub-contract any of the elements of the Services there shall be no detrimental affect to either you or the Services provided."

Wanadoo's amendment did not, however, make any specific commitment in respect of any reduction to guarantees for consumers where it might transfer its rights and obligations under the agreement.

In the absence of a specific complaint or evidence of consumer detriment, Ofcom's position has been reserved in respect of this clause. Ofcom will revisit this term in the event that any evidence arises of potential or actual unfairness to the detriment of consumers and, if necessary, take formal enforcement action under the Regulations.

Clause 13.5 of Wanadoo's terms and conditions states that the agreement supersedes any previous agreements and understandings between the Wanadoo and the consumer relating to the services.

Ofcom regards this clause as potentially unfair under paragraph 1(n) of Schedule 2 to the Regulations, as it allows Wanadoo to limit the seller's or supplier's obligations to respect commitments undertaken by his agents.

Wanadoo has agreed to change the term to:

"13.5 We intend to rely upon the written terms set out in this Agreement for the Service that we provide to you. We acknowledge that you will receive written and verbal information from our Customer Services staff which shall also be incorporated into this Agreement."

On the basis of the above, Ofcom has decided to close the investigation.
It should be noted that Ofcom does not have the power to "clear" terms under the Regulations. Only a court has the power to determine whether a term is unfair under the Regulations. Ofcom is therefore able to consider any further complaints regarding these Terms and Conditions in the light of the evidence presented to it.

Text published when the case was opened

Case leader: Andrew Walker (email: Andrew.Walker@ofcom.org.uk)
Case reference: CW/00779/07/04

Complainant: A member of the public
Complaint against: Wanadoo UK Plc
Case opened: 2 August 2004
Issue: Unfair contract terms
Relevant instrument: Unfair Terms in Consumer Contracts Regulations 1999.

Ofcom has received a complaint about terms in Wanadoo's contract "AnyTime Terms of Use", and is investigating whether any terms may be unfair.

Case Leader: Andrew Walker (Andrew.Walker@ofcom.org.uk)
Case Reference: CW/00779/08/04