contract-law international terms-of-service legal-terms email
Written evidence vs terms of service
<p>Me: from Europe</p>

<p>Company <em>A</em>: from United States of America</p>

<p>I signed up for a service from company <em>A</em>.</p>

<p><em>A</em> stated in their written e-mails to me that I would get a full refund when the service they provided results in failure.</p>

<p>While reading their Terms of Service I noticed a caveat that stated I would <strong>not</strong> get a full refund when their service resulted in failure. Due to this I asked company <em>A</em> what this means in regard to their earlier e-mail statements. They replied with the same message stating I would receive a full refund because the plan I was about to sign up for isn't included in the Terms of Service.</p>

<p><em>A</em>'s service resulted in failure. Due to this I asked for a full refund. The company replied there was a big misunderstanding which resulted in me not receiving a refund. After an email conversation they ended with: 'We'll get back to you a.s.a.p.'. Weeks go by but I did not receive any response.</p>

<p>In the meantime I contacted my credit card company asking them for the refund of the money. I received a statement I will not receive my money back because I agreed to <em>A</em>'s Terms of Service.</p>

<p>My questions for this situation are:</p>

<ul>
<li>Did <em>A</em> commit fraud?</li>
<li>Does their email supersede their ToS?</li>
</ul>

<p>"Fraud" requires an intent to deceive.  In cases like this I would fall back on the saying, "Never attribute to malice what can be explained by incompetence."</p>

<p>Practically speaking: the email you received from them is an amendment to their Terms of Service.  I.e., your contract with the company starts with their standard Terms of Service, and is modified by any agreement you reach that explicitly supersedes the ToS.</p>

<p>Based on your description it is your credit card company that is in violation of its duty to adjudicate chargebacks.  If you refuse the charge, and present the email agreement and evidence of <em>A</em>'s "failure," then the card company has no grounds to impose the charge on you (unless the merchant in its response to the chargeback can convincingly argue that the email agreement is invalid).</p>
