Are your website terms and conditions up to scratch?

Having an up-to-date website is part and parcel of doing business but staying on top of the never-ending list of regulations surrounding compliance can be challenging and time consuming. Commercial law expert, Robert Goddard at Thackray Williams, outlines the key issues that you need to bear in mind when setting up or managing your website.

Terms and conditions

It is important to ensure that your terms and conditions, including online terms of trading, cover key issues such as contract formation and liability. To be binding on the customer your terms must be accepted; so it is not sufficient just to place your terms and conditions on your website. You also need to ensure that a customer is given the opportunity to read and accept your terms prior to the sale being made.

Your terms should also set out the extent of your liability. For example, you are permitted to restrict liability for delays caused by factors beyond your control known as force majeure events. However, these factors need to be expressly stated and should be genuinely outside your control. Your terms cannot enable you to refuse to redress problems, especially if they are your fault. For example, you must take reasonable steps to prevent or minimise delays.

From 13 June 2014 the new Consumer Contracts Regulations apply to all purchases made at a distance, making it an obligation for traders to provide certain information to consumers. The Distance Selling Regulations still apply to any purchases made before that date.

Your website should display a whole raft of information including VAT information, pricing and delivery costs. If you are a limited company, then you also need to include details regarding your registered office and company number.

Additional pre-contract information that you must give to the consumer, includes:

whether telephone enquiries are to a premium rate or revenue sharing telephone numbers;
payment, delivery and performance arrangements; and
information regarding right to cancel.

You must extend your cancellation or cooling-off period to 14 days and provide a model cancellation form where the customer has a right to cancel the contract.

You are also now obliged to make it clear where proceeding to the next step will trigger a payment. Good practice would be labelling the payment button with “order and obligation to pay”.

Consumer protection

If you are dealing directly with public consumers, rather than other businesses, then you need to ensure that your terms comply with the Sale of Goods Act 1979 and the Unfair Terms in Consumer Contracts Regulations 1999. Your terms and conditions must be written in plain English. There are automatic terms that are deemed to be unfair and will not be binding on the customer, for example terms that prevent the customer recovering their money on cancellation or making the customer pay an unfair penalty.

Personal data and privacy

If your website collects personal data, then you need to comply with the rules contained in the Data Protection Act. You might collect data for all manner of reasons; online registration, for delivery purposes or as part of customer enquiry about your products or services. For whatever reason you collect personal data, you need to adhere to strict rules surrounding how you can use that data.

If you wish to use the data you have collected for direct marketing of your goods and services by email, then you need to comply with additional rules including obtaining an opt-in from the customer. We can help you to draft an appropriate data protection notice and privacy policy for your website.

Cookies

Not to be confused with the chocolate chip variety, in website terms a cookie is a small piece of information or tracking device that is placed on the internet user’s hard drive to make communication between your website and the user’s computer faster and easier.

The rules regarding cookies changed substantially in 2011 and you must now give users the opportunity to refuse cookies. If your website uses cookies, it is advisable to give a brief explanation as to how they work and how the data collected will be used.

For more information about website terms and conditions, trading online or any other commercial law problem contact Robert Goddard.