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Website and App Terms & Conditions
We encounter a lot of confusion when it comes to website or mobile app terms and conditions. Here are some FAQs which may help!
Do I really need website terms and conditions?
In an online context, terms and conditions (or “T&Cs” for short) usually refer to the contract under which you sell goods or supply services to customers. There are many other ways to describe the same kind of thing, eg “user agreement”, “conditions of use”, “conditions of sale”, “terms of service” etc.
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 a lawyer acting for your customer. Your own 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 they don’t work (e.g., 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, will check that you have a satisfactory set of ecommerce terms before they will let you open a merchant account.
Anyway, these documents are a useful vehicle to include certain compulsory information which must be supplied to users, especially consumers, e.g., about their rights to “cooling off”. See further below.
What about an “end user licence agreement” for my mobile app?
Legally speaking, a mobile app is a different animal from a website. App users download your software and so you need to give them a “licence” which sets out the basis on which they’re allowed to use the app.
Many of the principles which apply to website terms and conditions apply equally here.
But there are some additional things to bear in mind. For example, not only does Apple require that apps on its app store have an “End User Licence Agreement” (or “EULA”) in the first place, Apple also insist that certain minimum content is included in the document – of course designed to protect Apple.
Another difference is that, on websites, it’s fairly easy to arrange the sign-up process so that users click acceptance to the website terms and conditions before the contract is formed, which is critical to ensure that the terms are legally “incorporated” into the contract. Whereas getting app users to accept say an “End User Licence Agreement” after they’ve downloaded the app is unlikely work legally because this comes too late in the process. So, you need to find a way of drawing the app user’s attention to the app terms within the app store listing.
What are platform terms and conditions?
You need platform terms and conditions if your website or app provides a platform for other people to contract with each other.
Here, there are two kinds of contract at play. First, the main platform terms and conditions under which you provide your platform services to users – an important part of which is obviously to distance you from responsibility from the goods or services being offered on the platform. Second, the terms under which your users contract with each other. It’s important not to muddle the two, though it’s easy to do so!
Some platforms will leave the “inter-user” contract up to the users themselves; other platforms provide minimum or, sometimes, complete terms on which the users must contract with each other, often because the users may not have the know-how to prepare the terms themselves. As the platform provider, it’s important to be clear what you’re doing and why. This includes being aware of the regulations which apply to your sellers, so that you can enable them to comply.
See below for examples of some of industries for which we’ve provided platform terms and conditions.
What about “cooling off”?
As we’ve said, terms and conditions are basically a contract. Many laws apply to the contract, especially if you are dealing with consumers.
For example, as you may know, generally consumers who buy online have 14 days (from ordering a service or receiving goods) to cancel a contract and get a refund, provided that any goods are returned within 14 days of cancellation. That’s it in a nutshell, but of course there are a lot of details and qualifications around this.
So, cooling off doesn’t apply to some kinds of contracts, e.g., for perishables or customised goods. And you can make an appropriate deduction if the customer has “excessively handled” the goods, i.e. going beyond what would be expected if the customer was inspecting the items in a shop – provided the customer has been warned about this.
On the other hand, the cooling off period is extended if you don’t give consumers the correct form of notice explaining their rights – typically included in the terms and conditions.
Connected with this is the requirement to give consumers certain additional information about the contract – both in advance and also afterwards in a “durable” form (usually by means of a confirmation email).
Mobile apps aren’t subject to cooling off as they qualify as “digital downloads” – but only if you have obtained the correct consent from the user in advance.
What is the difference between B2B and B2C terms?
As one would expect, consumers have more legal protection than businesses. This means that there are a plethora of laws and regulations which affect consumer contracts, in addition to the cooling off laws mentioned above. For example, the rules about unfair contract terms restrict how far you can go when limiting your legal liability to consumers. Also, consumer contracts must be in plain and intelligible language. Other 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 UK lawyer drafting website or other internet standard terms and conditions – even in B2B scenarios – will only rarely attempt to disclaim all legal liability whatsoever 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 valid fall-back 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.
How standard are standard terms and conditions?
Terms and conditions may all look much the same if you just skim them briefly but in fact they vary greatly (or at least they should do) because they can cover many different situations, from say sale terms and conditions for businesses retailing goods on the web to terms of service for online services such as social media-type sites, internet dating, website apps, to end user licence agreements for mobile apps and so on.
Should I use a template?
Of course that’s your call. They may save you some money. It may be easier to get away with this if you are simply providing information free of charge to the public in a low-risk field, where there are no complicating factors. Terms and conditions for such “brochure” websites do tend to be fairly straightforward.
Otherwise there’s a risk that the template may not be sufficiently 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 those geared towards business customers may include terms which breach consumer protection regulations and are therefore unenforceable against consumers.
If you use a solicitor for your terms and conditions, you have the benefit of professional indemnity insurance cover.
For what kinds of websites / apps have Adlex prepared terms and conditions?
Here are some examples. Deep breath!
Goods include: art supplies, baby supplies, beauty products, clothing and fashion, dolls, electronic devices, fitness equipment, food and groceries, furniture, garden buildings, gifts, health products, jewellery, motor parts, pet food, soft furnishings, toys, vehicles, watches, wine etc.
Services include: accounts-related services, auctions, checking services (eg licence applications), children’s videos, coaching, comparison sites, computer games including MMORPGs and game apps, competitions (more about competition TCs), crowdfunding, CV distribution / job boards, dating (conventional and adult), dental services, diet plans, eBooks, educational / teaching services, event listing (e.g., sports), fleet management and logistics, lost property, medical testing and other medical services, meditation, photo storage, photography, printers, property listings, property-related services, recruitment, review websites, sports and other coaching, social media-related services, tenant references, tradespeople listings, training, video sites, webhosting, web template licensing, writing services, yoga etc.
Platform services (i.e. enabling suppliers to contract with customers onsite or in-app) include: artists, auctions, beauticians, cleaners, coaches, craftspeople, designers, escorts, events, gardeners, handyman, holiday property shares, language holiday exchanges, medical services, personal trainers, restaurants (connecting with delivery drivers), therapists, translators, tutors, web advertisers etc. And suppliers of goods such as aviation parts and marine supplies.