How should my website terms and conditions be drafted?
- Easy to understand.
- Transparent.
- Precise.
Your specimen terms and conditions are the terms which you rely on in relation to the sale of any product offered for sale to the public. The terms ought to include conditions dealing with the supply of, the price of and payment for the goods, restrictions on liabilities and general boilerplate provisions. As you are making a contract online it is vital you address issues specific to contracts made at a distance:
- A description of how the online contract is formed;
- Provisions concerning a consumer's right to cancel an online contract;
- Provisions clarifying the situation in relation to contracts with minors and with customers situated outside the United Kingdom.
The Stay Legal seal of approval provides you:
- Website terms and conditions of supply goods or services;
- Terms of website use;
- Privacy policy ;
- Acceptable use policy.
These documents are non-negotiable!
These four documents combined together ensure that you comply with all information requirements specified in the following pieces of legislation:
- Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (E-Commerce Regulations); and
- Consumer Protection (Distance Selling) Regulations 2000 (SI 2000/2334) (Distance Selling Regulations).
It is imperative that customers are legally bound by the website terms and conditions which must be properly incorporated into the contract between you and the customer.
As in all contract matters, the specimen terms and conditions will only be "incorporated" into the contract (and therefore be legally binding) if the terms are brought to the other party's attention before the contract is made. In an online context, this can be done either by inserting a hyperlink to a separate page where the terms and conditions are displayed (giving the customer the option to follow the link or not), or by requiring the customer to scroll through all the terms and conditions before he is allowed to place an order. The latter mechanism has been seen by many online suppliers as impairing the user-friendliness of the website. From a marketing point of view, therefore, website owners often prefer to require buyers simply to click on an icon indicating acceptance of the terms, rather than forcing them to actually read or scroll through the terms.
There is very little case law in this area, but it is generally accepted that with the mere inclusion of a hyperlink to terms displayed on a separate page, an online supplier runs the risk that the terms will not be properly incorporated if, for instance, the link fails. A safer practice is either the display of the terms in full, or the display of the terms inside a separate scroll-down window on the webpage. All of these methods are seen as valid under the E-Commerce Directive (2000/31/EC) (E-Commerce Directive) which requires EC member states to recognise such actions as click-wrap acknowledgement of the terms and conditions.
Finally, in order to ensure proper incorporation of the terms and conditions, certain "incorporation" language must be included as part of the ordering process. Customers should ideally be required to tick a box indicating that they accept the fact that the contract will be governed by the website terms and conditions, before being able to place their order.
