Upon Graduation from College, Martine Decided to Go into the Information

Upon graduation from college, Martine decided to go into the information business. His first venture was a
fee- based daily electronic newsletter for online stock traders. Given the time sensitive nature of the information, Martine's Terms of Use promised to deliver the newsletter every business day, no later than 9:00 AM Eastern Standard Time. The newsletter was doing fairly well until one day at 8:42 AM EST, Martine spilled Orange Crush on his notebook computer right as he clicked to send the newsletter to the subscriber list. Having experienced a hardware malfunction and having lost a key piece of software and a portion of his address list, the newsletter was sent to some subscribers but not all. Because Martine's service was down for the rest of the day, those who didn't receive the newsletter right when it was sent, never did receive the news that day.
Martine had no way to determine who received and who did not receive the newsletter. Consequently, several day traders demanded a refund for services not rendered, while others decided to seek damages for lost opportunities. Martine is seeking your advice. Outline the issues involved in this case and advise Martine on how he can prevent future disputes, given the nature of his business.