united-states contract-law negligence
Negligence in Cloud Storage
<p>I pay Microsoft $100 per year for 6 TB of cloud storage for a lot of personal videos.
Assume that there is a fire and Microsoft loses all of my data.  It is not clear whether
Microsoft stores my data redundandtly in multiple locations, but for the sake of this
question, assume that I prove that Microsoft stored my data at only one location (and
that I therefore argue that Microsoft was negligent).</p>
<p>The important <a href="https://www.microsoft.com/en-us/storedocs/terms-of-sale" rel="nofollow noreferrer">contract</a> terms
are below.  So, yes, I have agreed to a $100 limit, but Microsoft concedes that &quot;SOME
STATES OR PROVINCES/territories DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES&quot;.</p>
<p>What state of residence would be best for me for a lawsuit?  Is there any precedent
or method I can use to assess expected legal damages (given that I lose 2000 hours of
&quot;priceless&quot; family videos)?</p>
<blockquote>
<ol start="26">
<li>Warranties and Limitation of Remedies. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, MICROSOFT AND ITS SUPPLIERS, DISTRIBUTORS, RESELLERS, AND CONTENT PROVIDERS MAKE NO EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, OR NON-INFRINGEMENT. PRODUCTS OR SERVICES SOLD OR AVAILABLE IN THE STORE ARE WARRANTED, IF AT ALL, ONLY UNDER ANY LICENSE AGREEMENTS OR MANUFACTURER’S WARRANTIES THAT ACCOMPANY THEM. EXCEPT AS PROVIDED UNDER AN ACCOMPANYING LICENSE AGREEMENT OR MANUFACTURER’S WARRANTY:</li>
</ol>
<p>YOUR PURCHASE AND USE ARE AT YOUR OWN RISK;
WE PROVIDE PRODUCTS AND SERVICES &quot;AS IS,&quot; &quot;WITH ALL FAULTS,&quot; AND &quot;AS AVAILABLE&quot;;
YOU ASSUME THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE; AND
SHOULD THEY PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR.
MICROSOFT DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE STORE OR SERVICES. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL DOWNTIME OCCURS. WE DO NOT WARRANT THAT ACCESS TO THE STORE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT CONTENT LOSS WON’T OCCUR.</p>
<p>If, despite these Terms of Sale, you have any basis for recovering damages arising out of or RELATING TO the Store (including the Services), or any product or service offered, your exclusive remedy is to recover from Microsoft or ITS suppliers, resellers, distributors, and content providers DIRECT total damages up to (1) the price or fee for one month of any service, subscription, or similar fee (not including the purchase price for hardware, software, support, or extended warranties), or (2) if you live in (or are a business with your principal place of business in) the United States, US $100.00 if there was no service, subscription, or similar fee, or (3) if you live in (or are a business with your principal place of business in) Canada, CDN $[ ] if there was no service, subscription, or similar fee.</p>
<p>YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THIS CONTRACT IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY APPLY.</p>
<ol start="27">
<li>Limitation of Liability. YOU AGREE THAT YOU CAN'T RECOVER ANY OTHER DAMAGES OR LOSSES, INCLUDING CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, OR LOST PROFITS. The limitations and exclusions IN SECTIONS 26 AND 27 apply even if you incur damages and even if we knew or should have known about the possibility of the damages. SOME STATES OR PROVINCES/territories DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.</li>
</ol>
<p>To the maximum extent permitted by law, these limitations and exclusions apply to All CLAIMS, UNDER ANY LEGAL THEORY, related to the Store (including the Services), these terms of sale, or any product or service offered, including loss of content, any virus OR MALWARE affecting your use of the Store OR ANY PRODUCT OR SERVICE ACQUIRED FROM THE STORE; AND delays or failures in starting or completing transmissions or transactions.</p>
</blockquote>

<p>As a practical matter, you are screwed and there is no state or territory in the U.S. in which you have any meaningful remedy for the harm you suffer from their negligence. The waiver will be effective anywhere in the U.S. While the laws could differ between states in theory, in reality, they basically don't differ with respect to the validity of this waiver in a case of negligence.</p>
<p>Waivers of intentional misconduct, however, are void as a matter of public policy is almost every U.S. state and territory, so the waiver would not be effective in that kind of case.</p>
<p>The gray areas would be whether the waiver was effective in a case involving &quot;gross negligence&quot; or &quot;reckless&quot; conduct by the Company, in the face of public policy arguments. But, the conduct you describe in your hypothetical example would not fit that description.</p>
