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Reviewing Terms and Conditions (T&Cs) of Websites

Websites’ T&Cs are agreements between the website operator and website user. Generally, website T&Cs set out the legal relationship between the above parties by setting out the rights that are granted to the website users, accountability of the website operator for the representations made, and a disclaimer for liabilities.

Because of its importance, there are a few reasons why you should have them:

  • To prevent abuses
  • To protect your creative content
  • To terminate accounts
  • To limit your legal liability
  • And to set your governing law

 

There are 7 main clauses that one should include in website T&Cs. If your website does not include any of the following, please approach a lawyer to help you with the drafting.

  1. Enforceability

In order for you to enforce the T&Cs that you have displayed on your website, there has to be an offer and acceptance between you and the website users. Since the website T&Cs are a contract between you and the user, basic contractual principles apply.

This is usually carried out by employing a browse-wrap or a click-wrap method.

A browse-wrap method is the placement of the websites T&Cs (usually through a hyperlink) on your website (usually at the bottom). Acceptance to the T&Cs are affected through use of the website. In contrast, click-wraps are digital prompts (when using the website) that requires the website users to take active steps, such as clicking on “I agree” to the website T&Cs.

  1. Licence

This clause pertains to the rights that are granted to the website users. These rights can be laid down in accordance with your preference. Generally, these rights pertain to the right to use the content and services that are offered on your website.

  1. Acceptable use

This clause is important in restricting the way in which a website user may use the contents and services offered. Additionally, this serves as a guideline to the manner the website should be used. For example, some T&Cs prevent users from using the website for illegal purposes.

  1. Intellectual property rights

A varied amount of content is available on your website and some of this information is protected by copyright or trademark. This clause serves the function of informing the website user that the information is protected by copyright to prevent any inadvertent breach.

  1. Termination

This clause provides you with the right to terminate the website user’s license at your own discretion. Generally, the provisions in this clause would be drafted in a manner where it accords you sole discretion to effect such a termination. This is useful in allowing you to bar users (errant ones) from using your website.

  1. Disclaimer of liability

This clause is extremely important in protecting you from any liability that may arise from the use of your website. For example, if a user relies on the information on your website and suffers some harm as a result of such reliance, you will not be liable if the user has consented to such a risk.

However, do note that a disclaimer of liability clause has to be drafted in accordance with the Unfair Contract Terms Act (“UCTA”). For example, the UCTA requires that terms in a disclaimer are fair and reasonable and exclusion of liability for negligent acts resulting in personal injury or death is not valid.

  1. Governing law and jurisdiction

This clause specifies the relevant legal system that shall apply to the way the T&Cs are to be interpreted.

It may also provide for the mode of settlement should a dispute arises in the interpretation of the T&Cs (whether the matter can be brought to Court).

A clause that governs law and jurisdiction is important as it determines the applicable law. If this is not provided for, there may be a dispute with the applicable Court to settle the dispute which may result in long and costly litigation.

Conclusion

These are a generic set of clauses that should be included in websites of different variations. Depending on the nature and function of your website, more intricate and specific clauses may be required. You may wish to seek legal advice from a lawyer to draft a comprehensive set of T&Cs to ensure that you are properly protected.

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact us at: info@silvesterlegal.com

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