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| SSA(August 2012 to commencement of proceedings) | SUBSCRIPTIONSALL CHARGES INCURRED ON STEAM, AND ALL PURCHASES MADE WITH THE STEAM WALLET, ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, REGARDLESS OF THE METHOD, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.IF YOU ARE AN EU SUBSCRIBER YOU HAVE THE RIGHT TO WITHDRAW FROM A PURCHASE TRANSACTION FOR DIGITAL CONTENT WITHOUT CHARGE … |
239 In the 2011/2012 SSA, the statements that Steam fees were not "refundable in whole or part" were:
(1) expressed without any qualification;
(2) contained in clause 4 which was entitled "BILLING, PAYMENT AND OTHER SUBSCRIPTIONS";
(3) were set out in capital letters which stood out strongly against the rest of the clause in lower case; and
(4) were repeated in relation to credit card and Steam Wallet purchases.
240 Valve submitted that this representation that fees were not refundable would be reasonably understood by consumers who read the SSA to mean that the fees are "not refundable as a matter of contract" but that "you have a different regime that is overlaid on top" of the contractual regime (ts 229–230). Senior counsel for Valve relied upon a separate provision, cl 15 at the conclusion of the SSA, entitled "Miscellaneous" which was not in capitals and which read:
In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect.
241 I do not accept that any reasonable consumer in the position of a user of Valve games who read the 2011/2012 SSA would reach the conclusion asserted by Valve. There is no reference to any possibility of any "different regime". The contractual term did not convey the message
