Are you confident that if your website terms and conditions were challenged they would give you the legal rights and protections you need? The type of website terms and conditions your business requires and the specific content will vary depending on the purpose of your website, how users interact with it and who your users are. This blog post sets out some key areas you should consider to ensure that you are best placed to enforce your website terms and conditions should the need arise.
1. Be able to demonstrate user acceptance of the terms
Like any other type of contract, it is important that you can guarantee that the terms and conditions are agreed by the parties. If acceptance of the terms cannot be demonstrated then potentially there is no obligation to comply with the terms and any disclaimers or limitations of liability may be ineffective.
There are two options:
- “Click wrap” – the user clicks a box to say “I agree” (or similar) before they continue to the website. The click box should be at the end of the terms and conditions, requiring the user to read (or scroll) through the terms before they can click the box. Even if the user does not physically read the terms before clicking the box, the act of scrolling and clicking increases the likelihood that the terms and conditions will be found to be enforceable.
- “Browse wrap” – there is no click box requirement prior to accessing the website, but website users are given sufficient notice that there are applicable terms and conditions, told that they are available to read and given sufficient opportunity to review them. Website terms and conditions should be clearly displayed or be accessible by a prominent hyperlink (not in the small print of a footer!) on all pages of the website.
The risk of browsewrap is that acceptance of the terms is more difficult to prove. If using this option, then you should make a clear statement on your website that the terms and conditions apply, and that by accessing the website, the user is agreeing to those terms. If they do not agree they should leave the website.
2. Clear and readable terms
Terms and conditions should be in a clear and easy to read format that the user can print or download if they wish to do so. Use clear headings for each section or clause and good spacing. The font should be in an easy to read style, size, and colour. It sounds basic, and it is, but it’s easy to forget the basics sometimes.
3. Fair and reasonable
This is an area to be particularly aware of if some or all of your website users are consumers/non-business users as consumers are given more legal protection when it comes to the fairness of terms and conditions. Areas that should be given particular attention for non-business users to ensure they are fair and reasonable include:
- Limitations or exclusions of liability
- Applicable law and jurisdiction
- Rights to change the terms and conditions or content
- Disclaimers for content or links
- Rights for the website owner to use content that the user uploads to the website.
That said, even if your website operates in an exclusively business-to-business world, your business as the website owner is likely to be seen as being in a better bargaining position than your business users when it comes to the website terms and conditions. If your terms and conditions are fair and reasonable then they are likely to be viewed in a better light should they be challenged and therefore be more easily enforceable. If you have both business and non-business users, there are options you can discuss with your lawyer for separate terms applying to business and non-business users. Alternatively, you could simply have one set applicable to all users that meet the more generous consumer protections given to non-business users.
4. Meet legal requirements
There are basic legal information requirements that every website should meet, including information about company registration, contact details, VAT registration and details about any supervisory authority. There may be additional legal requirements depending on what your website is used for, how users interact with it, who your users are, and if you use your website to sell goods, services, or digital content, conclude contracts or process personal data. There are also legal requirements for cookies and user accessibility, as well as applicable disclaimers to use of the content, or rules about the use of content, that you should bear in mind You should seek Expert legal advice
to ensure that your website meets all legal requirements, especially if you have non-business users. Our lawyers are best placed to give your detailed expert legal advice on the specific needs of your business and website.
5. Keep Updated/Version Control
Your website’s terms and conditions should be regularly reviewed to ensure that they are current, appropriate and meet your business needs and legal requirements. You should keep good records of any updates and changes and have good version control in place. This will help you to identify what version of your terms and conditions applied at any particular time pinpoint a specific claim or incident. If you are updating or changing your terms and conditions, you should always follow the same process for demonstrating acceptance of the changes by the users as set out above. Remember to provide terms and conditions that are clear, readable, fair, reasonable and meeting legal requirements. Give users the opportunity to opt out of continuing to use your website if they do not accept the new terms and conditions. Our lawyers, provide expert legal advice to your business to ensure that your website terms and conditions are appropriate and robust. We also offer to review your existing website terms and conditions and recommend updates and improvements to make them more effective and better suited to your business needs. Get in touch with us - we are here to help.
The author of this article is expert LawBrief Jennifer Cowan
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