We all know that website terms and conditions (T&Cs) are important, but truthfully how many of us actually take the time to read them and go through the detail with a fine toothcomb? Linkilaw have written some key tips to guide you through this process.
There is no general law requiring all websites to publish terms and conditions of business. However, there are specific legislative frameworks which mean that it is incumbent for businesses to display certain information on their websites.
As explained in more detail below, these include:
- Distance selling laws
- E-commerce regulation
- Disclosure requirements for UK companies in line with the Companies Act
- Data protection
So it makes sense to have them. T&C’s can be a legal minefield and whilst there are free sample terms of business all over the internet, every business is different. Taking the risk of a “one size fits all” approach could cost you dearly later on, so if in doubt, get legal advice.
The good news is that since October of last year, consumers have a legal right to expect fair and transparent T&Cs as a result of the Consumer Rights Act 2015 (CRA 2015). Historically consumers have complained that T&Cs are unnecessary long and complex and, whilst there has been some protection if unfair terms exist, the end result is that if they haven’t been read many are left with products and services which often don’t suit their needs.
So business owners now have an increased obligation to create visible T&Cs – and in today’s day and age websites are the first port of call – critical information such as price and core details of sale/service needs to be clear, prominent and easy to understand.
What Terms and Conditions should I include on my website?
1. The Basics
Your T&Cs establish the foundation of your consumer interaction and define how your business will manage its customers. They set out your processes, procedures, limit your liability and establish the agreements that you and your customers have agreed to be bound by.
They govern what your rights and responsibilities are as a business, and what your customer’s rights and responsibilities are.
All T&Cs should address:
- The products and services
- Prices and payment
- Guarantees and warranties
- Copyright and trademarks
- Termination of service
- Governing law
- Changes in agreement
Following on from the changes to the CRA 2015, the headline areas which need to be prominent and transparent are price and subject matter terms. The idea is to enable consumers to make informed decisions when comparing the terms of business offered by different suppliers.
There is a general consensus that T&Cs should be no longer than two pages. Of course this is not always possible, and some services have very complicated business terms particularly if they operate within a regulated sector.
The aim is to provide consumers with all necessary information regarding the product or service that is being purchased with a clear indication as to what happens if something goes wrong. They need to set out the legal framework in which they operate and the applicable law.
Where possible use clear headings; creating themes so that the reader can distinguish the material that is required by law or industry regulation from those terms which have been inserted at the discretion of the parties or where the T&Cs go beyond the minimum requirements.
The government is also considering other practical measures which could be adopted such as T&Cs automatically opening before allowing a consumer to click to a purchase confirmation screen.
3. Privacy Statement
It is good practice to ask the consumer to agree to a business privacy statement and policy. Many business websites are using the tick box option. Increasingly areas such as data privacy and security are becoming more important to consumers who factor this into their decision-making process – are you creating the right impression that they can they trust your business?
4. “Fair” Notices
Terms must be fair, plain and intelligible and not be significantly unbalanced against customers. The CRA 2015 has clarified that notices will be assessed for “fairness” the event of a dispute. This means that business cannot solely rely upon a statement on its website and assume that these terms are automatically applicable. So instead of being automatically legally binding, the CRA 2015 will allow them to be challenged if they are unfair.
5. Consumer Contracts And Distance Selling
Businesses selling products or services to consumers through websites must comply with certain consumer contract and distance selling regulations.
Since June 2014, the Consumer Contracts (Information, Cancellation and additional Charges) Regulations 2013 (the Regulations) have implemented the EU Consumer Rights Directive to protect consumers from distance and doorstep selling.
The regulations require businesses to give consumers certain information before they enter into a contract. It is therefore incumbent that the information on your business website is “clear and comprehensible” so that it is easily and permanently accessible to consumers before they are bound by contract terms.
Consumers have a 12 month right to cancel on “distance” and “off premises” contracts, rather than the usual 14 days, if stipulated pre-contract information and cancellation forms are not supplied to consumers. “Distance” contracts include internet sales, telephone and mail order and “off premises” contracts are deals done at home or through doorstep sales or at work.
6. E-commerce Regulations
The Electronic Commerce (EC Directive) Regulations 2002 implement an EU Directive which was introduced to clarify and harmonise the rules of online business throughout Europe and boost consumer confidence.
The e-commerce regulations apply to almost every commercial website.
The Regulations refer to an “information society service” which is defined as “any service normally provided for remuneration at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, at the individual request of a recipient of the service.”
All service providers must display minimum information, which must be easily, directly and permanently accessible:
- The name of the service provider must be shown somewhere easily accessible on the site. This may differ from the trading name and any difference should be explained
- The geographic address of the service provider must be given
- The details of the service provider with a readily contactable email address. The important point is that is must allow rapid contact and effective communication. The CJEU held in the case of Bundesverband v Deutsche Internet Versicherung that a “contact us” form without another form of communication was not good enough. Businesses need to be able to respond to consumers promptly and directly
- Details of a register, including any registration number, should be given
- If the business is a member of a trade or similar register available to the public, confirmation of that
- Details of the relevant supervisory authority if the services are subject to an authorisation scheme
- Details of any professional body or similar institution with which the service provider is registered, his or her professional title and the Member State where that title has been granted besides reference to the applicable professional rules where the service provider exercises a regulated profession
- A VAT number, if a business has one should be stated – even if the website is not being used for e-commerce transactions
- Clear and unambiguous pricing, in particular, state whether prices are inclusive of tax and delivery costs
Consumers who place orders online must be provided with “appropriate, effective and accessible technical means” to enable them to identify and correct any errors before completing their orders.
Receipt of the order must also be acknowledged without undue delay by electronic means.
It is important that you explain fully how contracts are formed and your procedure for taking payment or refunding payments from credit cards.
8. Companies Act Disclosure Requirements
If your business is a company, then the Companies Act 2006 require you to state the place of registration on your website (e.g. “ABC Ltd is a company registered in England and Wales with company number 1234567”).
9. Data Protection
Make sure that you deal with data protection obligations.
Consider whether you actually need to collect information about your customers. Don’t ask for personal details unless you need to. Once you collect information, you should clearly explain what you are going to do with their information. This should be prominent on your website.
Remember that everyone has a right of access to information and correct it, if it’s wrong. Also explain how and whether the information will be used in other ways – for example if it may be passed to other organisations.
10. Alternative Dispute Resolution
It is now obligatory to give your consumers details of certified ADR providers. Since June of last year, approved third-party mediators have been available to resolve disputes between consumers and businesses in the event of a contractual dispute.
Alternative dispute resolution (ADR) is both quicker and cheaper than using the courts and could proactively settle a dispute once a consumer has exhausted a business’s internal complaints process.
This year the European Commission has launched an Online Dispute Resolution platform that all online traders will be required to carry a link to. The aim is to help consumers use ADR across all member states (with a translation function).
Need Terms and Conditions for your website?
Then you’re in the right place! We can create for you a customised terms and conditions specific to your needs and requirements. You can then conduct business online via your website with full peace of mind.