Online terms and conditions
It was a pleasure to work with Adlex on the terms and conditions for our web-based product. They clearly understood our requirements and translated all the legal "jargon" into something we could understand and discuss with them. We would not hesitate to recommend Adlex for online terms and conditions.
Colin Johnson, Director, Medilert
Here are some FAQs about web related terms and conditions:
What are online terms and conditions?
Online terms and conditions (or t&cs for short) simply mean a contract in an online context, usually between the provider of online goods and/or services on the one hand and buyers of those goods or users of services on the other. There are many other ways to describe the same thing, eg "user agreement", "conditions of use", "conditions of sale".
Do I need terms and conditions for my website?
Well, the main purpose of having a contract with your users is to set out the details of your legal relationship and to make it less likely that users will have a basis to sue you if something goes wrong. Indeed, having a tight set of web terms and conditions can be a useful bargaining chip if you receive a solicitor’s letter from the lawyer acting for your customer. You or your solicitor can point out the difficulties which the customer would face in taking legal action against you. Whereas if there are no terms and conditions, or if they don’t work (eg because terms are invalid or not sufficiently relevant), then you may have little to fall back on - other than an insurance policy (if you have one) or the hope that you won’t be sued!
Many payment providers such as Paypal require a satisfactory set of website terms and conditions before they will let you open a merchant account.
Website terms and conditions can also be a useful vehicle to include certain compulsory information that some kinds of websites are required to supply to users, particularly under the Distance Selling Regulations and Ecommerce Regulations.
Are there any laws or regulations which apply to online terms and conditions?
Yes, in a word. Terms and conditions constitute a contract and so, if UK law applies, these are governed by the UK law of contract (a combination of UK and EU legislation / court decisions) as well as regulatory controls. There are general laws which apply to all contracts and then specific laws which apply to particular kinds of contracts eg contracts involving consumers or contracts which are formed over the internet or contracts for the sale of goods.
How standard are standard terms and conditions?
Web terms and conditions may look similar if you just skim them briefly but in fact they vary greatly (or at least they should do) because they cover many different situations, from say sale terms and conditions for businesses retailing goods on the web to user agreements for online services such as social media sites, internet dating services or online computer games, say from online auction terms and conditions to those required for web platforms where businesses can advertise or sell products to consumers or other businesses or both. There are many other examples.
What is the difference between terms and conditions for consumers and businesses?
As one would expect, consumers have more legal protection than businesses. This means that there are a plethora of laws and regulations which restrict what you can put in consumer contracts. For example, the Unfair Contract Terms Act says that you can’t exclude or limit liability for the quality of goods vis a vis consumers. The Unfair Terms in Consumer Contracts Regulations require consumer contracts to be in plain and intelligible language and (with limited exceptions) they ban terms which are unfair. The Distance Selling Regulations require that, when contracting with consumers at a distance (including over the internet), you have to supply certain minimum information to users including a right of "cooling off", which is enabled by the regulations. The Unfair Trading Regulations ban certain unfair trading practices, some of which are criminal offences. And so on.
With B2B terms and conditions, there are less restrictions but still you don’t have an entirely free hand. For example, clauses in standard contracts which try to exclude or limit your legal liability if something goes wrong can be struck down by a court if considered unreasonable.
Will terms and conditions drafted by a lawyer ensure that I am never legally liable for anything?
No, not even "lawyer terms and conditions" can completely exonerate you from legal liability. In fact a lawyer drafting website or other internet standard terms and conditions under UK law will be careful before disclaiming all legal liability – even in B2B scenarios - because such a clause is very likely to be declared unreasonable, and invalid, by the UK courts, thereby leaving the business entirely unprotected (unless there is a fallback clause). A solicitor familiar with UK law applicable to online terms and conditions is more likely to draft a series of more moderate, self-contained limitations on liability – which stand a greater chance of surviving court scrutiny.
Should I use template terms and conditions?
Of course that’s your call. It will save you some money. Perhaps you might get away with it if you are simply providing information free of charge to the public in a low-risk field, where there are no complicating factors such as user generated content (UGC) or any kind of ecommerce. Terms and conditions for such "brochure" websites do tend to be fairly straightforward.
The risk increases for ecommerce websites or other kinds of sites with a high risk factor such as those including UGC (see internet defamation). The reason being that template terms and conditions are less likely to be relevant to your business model, thereby leaving gaps. So, for example, standard terms and conditions which try to cover both goods and services are likely to fall short because the legal frameworks are entirely different. And web terms and conditions geared towards business customers are likely to include many terms which breach consumer protection regulations and are therefore unenforceable against consumers.
Obviously, if you use a solicitor for your terms and conditions, you have the benefit of professional indemnity insurance cover.
What is the difference between terms and conditions and a privacy policy?
As explained above, terms and conditions are a contract between you and your customer concerning use of your website / supply of goods or services. Whereas a privacy policy is designed to inform website users about your processing of "personal data" (ie information which enables people to be identified), which is required under data protection laws. See internet privacy. The two should be kept separate although sometimes it’s necessary to include privacy issues in the terms and conditions, especially if you need to impose data protection related obligations on customers eg to get appropriate consent before uploading content which includes personal data of others.
How Adlex Solicitors can you help you...
For fixed price solicitor-drafted terms and conditions for your website, contact internet lawyer Adam Taylor of Adlex Solicitors on +44 (0) 207 317 8404 or email.