Website terms and conditions: are you falling foul of the law?

You are ultimately responsible for what goes on your company site. We review website terms and conditions on a regular basis, and are constantly surprised by the number who “borrow” or even cut and paste terms and conditions from elsewhere. However, these “cut and shut” terms offer little concrete protection and, if challenged, will most likely fail you. In fact, there is no such thing as standard terms and conditions. So, even if taken from a similar website (eg: that of a competitor), these terms and conditions may be unsuitable for your website.

To protect yourself and stay on the right side of the law, these are the policies that should be visible for visitors to your website.

Terms and conditions

Terms and conditions regulate the relationship between you and your customer. They detail key areas such as delivery, refunds, title and risk and are designed to offer your company a level of protection that the law simply doesn?t afford you. Bespoke terms and conditions can be drafted to limit your liability, and in some circumstances to cap liability.?

Terms of use policy

A terms of use policy is essential as it regulates the use of your website. Every policy should include clauses that seek to limit your liability. In particular, a clause stating that you are not liable for links to other websites on your site and that you give no warranties in respect of the accuracies of the information on your website ? which otherwise you could be liable for.?

Privacy policy

The Data Protection Act requires anyone holding personal information about its website users to set out what information is collected, how it is used and how users can update that information. For websites, this is best accomplished by having a privacy policy outlining this information.

Even with these policies in place, there are still pitfalls ahead. Many businesses fail to put these policies in the correct place. Best practice is to have a legal documents page which contains your terms of use and privacy policy. Then, on every page, include a link to the legal documents page. This means that any user accessing your website on any page will see the link to the legal documents page and can access those documents.?

If the user doesn?t agree with the policies they can leave your website.?

If they do agree and continue to use the website, they do so in accordance with your policies.?

In addition, when a user makes a purchase or sale through your website, you must make sure that they agree to use your terms and conditions before the transaction is concluded; it is not enough merely to have them on your website. This can be accomplished by having a tick box: if they don?t agree to the terms and conditions they cannot purchase products or services.?

Useful tips

  1. Restrict who can leave comments on your website as you may be liable for any defamatory or offensive comments. Make sure you regularly check your comments page and remove any offensive remarks.
  2. If using another party?s software, photos or copyright (intellectual property) ensure you have the correct licences.
  3. Be clear about your prices. The Advertising Standards Authority was extended this year to cover websites. If your pricing isn?t clear (especially as regards inclusive/exclusive VAT) you will be in breach of regulations and liable for a penalty.?
  4. Most importantly, remember that the laws of the land apply to the internet. Many people seem to think the internet is a second reality where the laws of the land don?t apply (ie: breaching super injunctions on Twitter) but these laws do apply to websites.?
Jason Hathaway is the managing director and head of the commercial division at Edward Hands and Lewis, one of Leicestershire?s largest independent solicitors and County Law Firm of the Year. Jason specialises in company and commercial work, much of which is with owner managed businesses.

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