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| VALVE AND ITS AFFILIATES AND SERVICE PROVIDERS EXPRESSLY DISCLAIM (I) ANY WARRANTY FOR … THE SOFTWARE … (II) ANY COMMON LAW DUTIES WITH REGARD TO … THE SOFTWARE … INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. … THE SOFTWARE … ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT … THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.…C. NO GUARANTEES NEITHER VALVE NOR ITS AFFILIATES GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS FREE, OR SECURE OPERATION AND ACCESS TO … THE SOFTWARE … |
250 Section s 64 of the Australian Consumer Law had the effect that it was not possible for a supplier of goods to exclude, modify or restrict the consumer guarantee of acceptable quality in s 54 of the Australian Consumer Law.
251 Valve submitted that the inclusion of the words "this section will apply to the maximum extent permitted by applicable law" had the effect that the representation was not false or misleading. However, considering the clause as a whole, it remains misleading for several reasons.
252 First, the qualification was expressed in general terms at the conclusion of a strong and broadly worded exclusion which included the express statement in the heading "No Guarantees".
253 Secondly, the qualification did not expressly make the exclusion subject to other laws. Instead, to the extent that it did so, it did so impliedly and in the course of representing that the section would be applied to the maximum extent possible.
