Underlined and star to what I think maybe applicable in this case.
https://assets.publishing.service.gov.uk/media/5a7c7f43ed915d48c241023b/oft311.pdfOffice of fair trading: Unfair contract terms guidanceGuidance for the Unfair Terms in Consumer Contracts
Regulations 1999 September 2008
Exclusion and limitation clauses in general1.1 Terms which serve to exclude or limit liability (also known as disclaimers,
or exemption clauses) take many different forms. Detailed comments on
particular types of disclaimer which may be unfair can be found in
subsections 2(a) to 2(h) below. But some comments can be made which
apply to all of them
1.5 Other arguments, such as those below, cannot be used to justify an over-
extensive disclaimer.
•
That it is intended only to deal with unjustified demands.
If a disclaimer
could be used to defeat legitimate claims it is likely to be unfair. The
Regulations are concerned with the effect terms can have, not just
with the intentions behind them. If the potential effect of a term goes
further than is intended, it may be possible to make it fair by cutting
back its scope (see Annexe A for examples showing how this can be
done).
•
That it does not actually operate by excluding liability. If a term
achieves the same effect as an unfair exemption clause, it will be unfair
whatever its form or mechanism. This applies, for example, to terms
which 'deem' things to be the case, or get consumers to declare that
Unfair contract terms guidance
15
they are – whether they really are or not – with the aim of ensuring no
liability arises in the first place.
•
That there is a statement which says 'the customer's statutory rights
are not affected'.
An unfair disclaimer is not made acceptable by being
partially contradicted by an unexplained legal technicality whose effect
only a lawyer is likely to understand. See below Part IV on the plain
and intelligible language requirement, and particularly paragraph 19.5.
1.10 No contract term can legally have the effect of excluding liability for death
or injury caused by negligence in the course of business, and such terms
should not appear in consumer contracts. 3 As well as being unfair, their
use is liable to be misleading, and therefore may give rise to action as an
unfair commercial practice, which can in certain circumstances involve
prosecution (see above, page 10).
General disclaimers, for example saying that customers use equipment or
premises 'at their own risk', cover liability for death or personal injury even
though the main concern of the supplier may be something else. It might,
for example, be intended to stop consumers trying to sue for loss of or
damage to their clothes or other property which is really the result of their
own carelessness. But the fact that the intention behind a term is more
limited than its potential effects does not make it fair.
1.1.2 Disclaimers of this kind, like other exemption clauses, may be acceptable if
they are qualified so that liability for loss or harm is not excluded or
restricted where the supplier is at fault, or is disclaimed only where
someone else – or a factor outside anyone's control – is to blame.
Group 2(a): Exclusion of liability for faulty or misdescribed goods2.1.2 As well as potentially being unfair under the Regulations, the use of such
disclaimers is liable to mislead consumers about their statutory rights. As
such, it can give rise to enforcement action as an unfair commercial
practice (see above, page 11).* 2.8.6 Any guarantee which gives consumers substantially less protection than
their ordinary rights is unlikely to be made fair merely by addition of a
qualifying statement of any kind. In the OFT's view, such a guarantee
should be discontinued altogether, or its terms should be brought into line
with the consumer's legal rights.
Group 9: Binding consumers to hidden terms 25 – paragraph 1(i)
of Schedule 2Schedule 2, paragraph 1, states that terms may be unfair if they
have the object or effect of:(i) * irrevocably binding the consumer to terms with which he had no
real opportunity of becoming acquainted before the conclusion of
the contract.9.1 * Terms which have the effect of making consumers agree to accept
obligations of which they can have no knowledge at the time of contracting
are open to serious objection. It is a fundamental requirement of contractual
fairness that consumers should always have an opportunity to read and
understand terms before becoming bound by them (see Part IV).9.2 * It is not 'hidden terms' themselves that are indicated to be unfair, but any
term which binds the consumer to accept or comply with them – or, in
legal jargon, 'incorporates' them 'by reference'. However, terms of whose
existence and content the consumer has no adequate notice at the time of
entering the contract may not be binding under the general law, in any
case, especially if they are onerous in character.
Group 11: Right to change what is supplied – paragraph 1(k) of
Schedule 2Schedule 2, paragraph 1, states that terms may be unfair if they
have the object or effect of:
(k)enabling the seller or supplier to alter unilaterally without a valid
reason any characteristics of the product or service to be
provided.
11.1 The OFT's objections to variation clauses generally are set out under Group
10.
** A variation clause of the particular kind described in the wording above
allows a supplier to substitute something different for what he has actually
agreed to supply. This conflicts with the consumer's legal right to receive
something that is in all significant respects what he or she agreed to buy,
not merely something similar or equivalent.
11.2 Consumers are legally entitled to expect satisfactory quality in goods and
services, but that does not mean it is fair to reserve the right to supply
something that is not what was agreed but is of equivalent standard or
value. Terms should respect both the right to receive products that are as
described and the right to satisfactory quality, not one or the other.
** There is already a legal disclaimer in their Amazon listing :
Important information
Legal Disclaimer
Performance may vary based on system hardware, operating system, SSD capacity, individual usage pattern and other system variables. Please note that TBW will vary based on the usage pattern of individual users, including the workload of individual users.
So that maybe that could in addition be considered a variation clause and it is not fair that they have substituted different terms outside the listing.
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