Additonal Information On Terms and Conditions
Enforceable contract terms should be at the forefront of any website terms and conditions lawyer’s mind when writing website terms and conditions. Enforcing website terms are very important since the first matter for any court to deal with in a contract case is to decide whether the contract as a whole is effective, and then to determine whether the individual clauses within that contract are enforceable.
Some SME owners/managers have expressed the opinion that nobody ever reads the terms and conditions of a website. To these business owners having website terms and conditions is a box-ticking exercise to make customers and partners feel comfortable. This view, in my opinion, is the type of business owner that will have issues with enforceable website terms.
Other SMEs do not consider enforceable website terms as a box-ticking exercise but are focused on outcomes. Their question to us is “what is the outcome for their business, partners, and customers of having enforceable website terms?” To my mind, if a business is to be successful it would be wise to focus on the outcome of its terms and conditions of business rather than ticking a box.
This advice applies both while the going is good and in the bad times. While the going is good website terms have the following benefits:
(i) ensure clarity of expectation as to what exactly is being provided;
(ii) are a reference document in case of confusion or misunderstanding; and
(iii) they add a level of professionalism to the business.
In bad times the website contracts protect the business. The benefit of protection is the most important of all the benefits of having website contracts.
When things cannot be resolved amicably then the details in your contracts suddenly become of vital importance because it’s those details that will protect your business when the need arises.
Drafting appropriate clauses to protect a business is not just a cut-and-paste exercise. Clauses that attempt to protect a business are difficult to draft as they may be inter alia ineffective or unenforceable for being unfair, a restraint of trade, a breach of competition law, a breach of regulation maintained by an authority, and a breach of fundamental human rights.
Examples of clauses that are notorious for being unenforceable include:
(i) Non-compete provision to cover customers (See Jones v. IOS (UK) Limited and another [2012] EWHC 348 (CH), 2 March 2012).
(ii) Clauses giving rights to third parties under the Contracts Rights of Third Parties Act 1999 may be unenforceable internationally.
(iii) Arbitration clauses may be unenforceable against third parties.
(iv) Non-Solicitation and confidentiality clauses may be insufficient to cover business interests ( See Thomas v Farr plc and Hanover Park Commercial Limited [2007] EWCA Civ 118).
(v) Clauses may be unenforceable under the Consumer Credit Act 1974.
(vi) Exclusion and limitation of liability clause.
(vii) Force Majeure and liquidated damages clause (See Tandrin Aviation Holdings Ltd v Aero Toy Store LLC [2010] EWHC 40 (Comm)).
(viii) Jurisdiction clauses are not always effective (See Deutsche Bank A.G. & Ors -v- Asia Pacific Broadband Wireless Communications Inc & Anr [2008] EWCA Civ 1091).
It is unwise to view website contracts as a box-ticking exercise, it would be wiser to see them as an outcomes-focused exercise.
There is always a risk of ineffective website contracts. There is an even greater risk if there is no careful consideration of the clauses.
If no thought is given to the website contracts then you are at much greater risk of little protection if the need should ever arise.
Our website business terms practice is for businesses and individuals and applies to all digital content media. Websites and mobile applications use similar terms for the same business. In other words, we provide terms for any media through which a business conducts its affairs online - including its websites, applications for mobile, tablet and other smart devices and application program interfaces.
Other important challenges for a website project
Other important challenges in website projects are protecting confidential information; correctly written software licenses and other end-user licenses. Web design and development agreements are vital, for instance, change requests and intellectual property transfers.
Delivery
Your terms and conditions will be sent back to you by email within seven days if it is a standard B2C; four weeks if it is business basic level; and enterprise level delivery times are to be agreed, (unless you have indicated that you want a faster turnaround). Delivery timescales are typically: seven business days; two weeks; one month; and two months. Fast turnaround times are: *24 hours; *48 hours;
No further fees will be charged unless agreed in advance. All payments are made in advance and prices are quoted net of VAT which will be added.
Alternatively, you may contact us by email or telephone:
Alternatively, you may contact us by email or telephone or complete the contact form below:
Useful Links
Contract Review Service; Website Terms and Conditions Dos and Dont’s; Privacy Policy Drafting; Website Copyright Infringement; Mobile App Terms and Conditions; Data Protection Lawyers UK
Get Started
