Terms and conditions that will protect your business
Getting your website terms and conditions right might not be your most pressing task when you are building or redeveloping a site, but they are critical to your business.
T&C form the contract between you and your site visitor, and if you sell online, your customers. Without that contract, it is much harder to protect your business if your site visitors behave in a way that is detrimental to it. If you are trading online, particularly if your customers are consumers, without good T&C, at best you may forfeit your rights in law, and at worst you may break the law and become liable for significant fines.
What you will find in our documents
All our T&C provide what could be called an Acceptable Use Policy, which sets out what visitors may and may not do when they interact with your site. If visitors also transact, then we also include terms of sale as applicable to the business model you have.
No term appears in every template we sell. Each document has been drawn to be relevant to the business we intend to protect.
Use of plain English strengthens the document
Consistent use of plain English and minimal “legalese” throughout helps because:
you can set out clearly how your business works and what your site users can expect
it prevent misunderstandings and makes solving disputes easier
it present a professional image of your business
it helps ensure customers do not feel intimidated by overly formal or legalistic language
it makes a document easy for you to edit
Extensive guidance to help you edit the template
With each document we include extensive guidance notes that explain each paragraph. Despite our efforts to draw documents relevant to common business models, there will be paragraphs in the document that you will want to add to or edit because your business is different. That is fine, and we can check your edits as part of our additional review service if you would like confirmation that they fit.
Compliance with the law
You have a legal obligation to present your T&C openly and legibly on your site.
But if you ignore these obligations, it is not likely to be your user who complains. It will be some journalist or consumer organisation or local government officer. So those are the people we protect you from. Compliance is not just about complying. It is about being seen to comply.
Site security and restrictions on what your user may post to your website
We take site security very seriously. Having strong security terms in a T&C document is not going to stop crime, but it does:
provide a deterrent to any misuse for which you could sue in court
prevent you being blamed for criminal or nuisance activity
reduce the chance of your being the subject of some bad social medium campaign - particularly important if your members can contribute content to your site that you might not moderate in real time
present your site in a strong and purposeful way, giving out a message that you are not a “soft touch”
assist in protecting you from civil or criminal charges for which you may otherwise be liable as a result of what someone else posts to your website
provide permission for you to remove offensive content and generally stay in full control of what happens on your website
By using these provisions, we give you the best possible defence against anyone who claims he has been insulted, injured, or defamed.
Particular terms which are included where relevant
We provide disclaimers. They are not always binding because you can disclaim only so far as the law allows. The law is complicated and much depends on the facts of each case. If you overstep the mark, your disclaimer will be void.
We use disclaimers strongly but we use words that we hope will avoid upsetting your clients and customers.
Intellectual property protection
We provide the strongest protection for your IP rights, whether your business is “IP light” or involves complex software and systems.
Suitable for sites with international visitors
Our documents are written to cover international use because most websites are likely to attract visitors from across the world.
Every document is drawn under the law of England and Wales. Much is likely to be enforceable in many other legal jurisdictions as well.
Scotland and Northern Ireland have adopted the same law in the vast majority of cases, but we make no promises as to full compliance with Scottish law.
Your business model might include taking advertising in some way. Our documents do not regulate the terms of any advertising. That deal is between you and your advertiser, rather than between you and your visitors as your T&C are. But we do include general terms intended to protect you from a claim by a site user in respect of anything he or she might claim against you.
Customer data storage
We make sure your user does not expect you to keep his data indefinitely, or at all. We also cover you against any claim that you are in breach of any customer “right” covering his data.
Basis of Contract
You cannot impose rules. You can only make a contract.
A contract is only formed if your visitor ticks a box to do so explicitly. No tick, no contract. So if you have a site that is entirely open to use, or even pages than can be explored before registration, it cannot be fully protected by any T&C document. Despite that principle, there are circumstances in which you could claim that your T&Cs apply, so it is always worth having them.
Your confidential information is defined at length. We help you safeguard all your secrets.
Terms for sale of goods and services
When you choose a document, you will see that we do not repeat the same points about e-commerce in the details of every document. You may safely take it that if your site is likely to be e-commerce enabled, we shall make sure you are covered.
Price and payment
We give you options on every part of the charging process, from straight unit price to royalty, to payment on running credit account, to commission on sales. Like all other terms, we make it easy for you by limiting options to what is appropriate for a site like yours.
Consumer protection, order cancellation and returns
The law in this area starts with common law dealing with the basics of contracts: offer, acceptance, price and payment, provision of service, liabilities, returns, retention of title and risk. Then there are acts and regulations on every element of trading.
If you sell to consumers, you must comply with the arcane and unnecessary (in our humble opinion) Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Every relevant document includes not only an extensive explanation, but also the words of the notice you must give, and instructions as to how to deal. We tell you what you need to know, but give you only what you need in your particular business.
We provide sensible terms. However, the law everywhere provides that if you sell defective goods or services you are obliged to pay for all foreseeable resulting loss and expense. That is the common law, pre-dating any sale of goods act.
We define a marketplace site as one where the website operator is an intermediary, providing a platform from which someone else sells goods or services to buyers who come to the site.
Because each marketplace website has its own business model, we provide separate agreements for terms with buyers and sellers. You should therefore buy a pair of documents: one dealing with terms for your sellers and one dealing with terms for the buyers.
Seller side documents vary far less than buyer side documents so we have not provided exact matches. Only you know which of each side best suits your business model. If you need help choosing, please ask.
We offer several options for sale of services because that word covers such a vast range.
We try to avoid you being an agent in law, but rather a publisher. However, the range of services you offer and the fact that you collect payment may well categorise you as an agent. We know of no court cases on this point.
We do our utmost to insulate you from problems between a seller and a buyer. We push seller obligations onto your sellers and direct a buyer to his or her seller, leaving you as clean as possible.
However, as an intermediary, you still have to comply with the CC(ICAC) Regulations. We have covered that of course.
All market place documents cover:
a framework of rules as to how a seller places a product or service with you
the fact that you do not hold stock
e-commerce: prices, your remuneration options, return of goods, taxes
your payment options: a commission basis, a transaction fee basis, through advertising, or not at all
upload by sellers of their own product pages or product advertisements
joint advertising to sellers
options for regular sellers (for example, ones that operate their business entirely from your site), and one-off sales
Membership sites vary widely. You can use a membership business model not only to sell goods or services but also to provide information or regulate a free service.
A key point in paid membership sites business models is how and when to obtain payment. You cannot unilaterally renew a contract. However, if you continue a course of action and your customer accepts or acquiesces, he cannot later complain if he has continued to enjoy the services. In reality many Internet contracts are continued from year to year. We cover this thoroughly of course.
The best way to deal with this issue is to provide a warning to a customer or member about four weeks before you take payment, with a copy of the invoice against which payment will be taken. You then take the payment on the due date and send a new message to your customer or member to confirm.
Why a licence might be relevant to what you sell
If you own a car, you can sell it only once. Not so with intellectual property. In law, you “sell” a right to sing your song (or use your legal document template) by way of grant of a licence. Every T&C document drawn for a site which allows use of its intellectual property includes a licence in some form. So whenever in these
T&C documents, we consider the sale of software or soft-copy goods we are dealing with a licence, not an outright sale.
Limitations and permissions on licences
Permissions concern simple expressions of duration, territory, market, timescale, and so on. Limitations generally cover what your customer is not allowed to do. Examples are: transfer ownership of his licence to someone else; copy text; allow anyone else to use the software. These points are matters for your choice.
A licence is infinitely variable. You can decide on the term, exclusivity, market, transferability, extent and many more variables. Other options include: sub-licensing, removing ID references and prohibited uses.
Every licence in these documents contains appropriate limitations and permissions. The extent and terms of the licence varies from simple to extremely thorough. What we provide in each licence varies according to the requirement of the product. You can delete what you do not need and add anything referable to your particular business.
Licence terms in these documents are:
professionally drawn and tough in law
useful for both business to business or business to consumer transactions
easy for you to adapt if you need to do so
The law in these terms and conditions documents
The law in these T&C is largely common law that deals with the basics of contracts: offer, acceptance, price and payment, delivery, returns, dispute resolution, liabilities and risk. Provided you comply with the law, you can set the commercial terms you like.
Where your end customer is a consumer, you need to comply with the Consumer Contracts (ICAC) 2013 Regulations. Therefore, whether you are a marketplace site or a direct seller, we have included relevant provisions in our templates that enable you to comply with these Regulations and run your business seamlessly.
Where your customer is a business person, our templates allow you to comply with the Sale of Goods Acts (1979 and 1994).
Where statute law could apply, the T&C have been drawn then applies to specific circumstances, for example, we have included provisions to comply with the Waste Electronic and Electrical Equipment Regulations 2013, but these are only relevant if the type of goods sold is electronic or electrical.