ebook for drafting website terms and conditions - guide for best practices including crucial legal...
TRANSCRIPT
Drafting Considerations
Guide covering crucial aspects to be considered
while drafting Website Terms & Conditions
WebsiteTerms
Contents
2 Title of the book
34
789
| Introduction
| Limitation of Liability
| IP Ownership & Third-Party Content| Privacy Policy
| Checklist: Do’s and Don’ts
Introduction
A
3 Website Terms – Drafting Considerations
s businesses and marketplaces transition towards new age mediums such as web and mobile, complexities surrounding them also continue to grow.Appropriate terms and conditions along with privacy policies are critical to every website and mobile application.Important considerations while drafting terms and conditions for websites and mobile applications are discussed herein.
Limitation of Liability While drafting terms and conditions for websites and
mobile applications, limiting the liability is extremely crucial as no business intends to be held responsible for misleading the consumers.
Accordingly, by having appropriate liability clauses, businesses can limit the liability of the business, its directors, officers and employees.
One way to limit the liability of a business is by explicitly stating in website terms and conditions that information published on the website, while assumed to be accurate, may in fact be incorrect, out of date, or inaccurate to some extent. This is due to the probable reason that any changes in business may not be implemented on the website in real time.
Therefore, it is advisable to mention in website terms and conditions that the information is provided ‘in good faith’ on an ‘as is’ basis,
which implies that the information should only be taken at face value and not be relied on to any extent beyond which the law requires.
4 Website Terms – Drafting Considerations
5
Another important way to limit the liability of
business is to explicitly acknowledge the relevant
provisions of applicable laws and agree to applicable
rights and remedies available to the consumers of your
business.
If website is offering products and/or services,
such rights should be clearly stated in accordance with
laws of appropriate jurisdictions. Specifically, in case of
online marketplace business offering products or
services through third party vendors, it should be clearly
stated as to who is providing such products or services,
so that appropriate consumer rights and remedies can
be accordingly decided.
However, certain information,
such as, for example, but not
limited to, contact details, is
required to be accurate by
law across multiple
jurisdictions.
In addition, website terms and
conditions should be drafted
to exclude the company, its
directors, officers and
employees of any liability for
any representations or
possible warranties.
Website Terms – Drafting Considerations
6
Furthermore, with a view to secure business’s
interest and appropriately acknowledging
consumer’s rights and remedies, balanced
website terms and conditions shall be drafted
to clearly state all the inclusions to limit the
applicability of any implied conditions or
warranties, to the extent as permitted by the law.
There can be numerous cases where such
exclusions can be applied, such as, for example,
but not limited to, disclaiming any implied or
express guarantees, warranties,
representations or conditions of any kind,
which are beyond the scope of transactions
between the business and the consumers,
error free accessibility and use of the website,
and the like.
Liability of business
can further be limited
by drafting website
terms and conditions
in accordance with
prices of products
and services offered
by the website.
Various areas of law
take into account the
consideration, i.e. the
price. Such areas of
law include, contracts
law, law of torts
(negligence), equity,
and the like.
It should be explained that content (brand name, logo, images, videos, source code, and the like) of the website is protected by applicable Intellectual Property Rights (IPR), including, Patents, Copyrights, Trademarks, etc.
CONTEN
TIP Ownership & Third Party Content
While drafting website terms and conditions, it is absolutely mandatory to include provisions specifying ownership of Intellectual Property (IP).
Website Terms – Drafting Considerations
IP Ownership&
Third-Party Content
7
IP ownership provision shall further state that copying, redistribution, use or publication by the user is strictly prohibited except as expressly allowed by other section of website terms.
Website Terms – Drafting Considerations
Accordingly, such provisions explicitly define the company’s ownership of website content. In addition, it is also advisable to mention that certain website content may belong to third parties, as and when applicable.
With regards to third-Party content, appropriate provision is required within website terms and conditions to clearly state that the business owner or company is not responsible or liable for third party content in any manner, and does not support or endorse the views stated in said third-party content.
Laws and regulations relating to
data privacy and data protection
are applicable to any business that
collects personal information from
an individual. In accordance with
provisions of applicable laws and
regulations, website terms and
conditions should include a
detailed privacy policy, which
shall explain appropriate provisions
to inform the user about collection
of such personal information and
data.
Furthermore, if a website uses cookies to
gather information about visitors of the
website, the users need to be informed about
the same, along with the purpose for which
such information is being collected, how
such information will be used, how such
information will be protected, and what all
steps can users take to get their
information removed from company’s
records. Moreover, it is also advisable to state
the applicable laws related to data privacy and
protection of personal data, and corresponding
rights and remedies available to the users.
Rahul DevBusiness Lawyer & Patent AttorneyHe serves as Partner, Tech Corp Legal LLP, an International Law Firm focusing on IP, Technology & Corporate laws, in addition to litigation practice.He is also Director of Tech Corp International Consultants, a tech business consultancy based in Singapore.He works with multiple clients in India, US, EU, Singapore and other major jurisdictions for various legal, technical and management consulting services related to a diverse range of products and technologies, including Business Structuring, IP (patents, trademarks etc.), Legal Documentation, Fundraising, International Business Strategy, and related consulting services.
8 Website Terms – Drafting Considerations
Privacy Policy
Checklist: Do’s and Don’ts
•Incorporation of “I Accept” Button: One of the best ways to make
the terms accessible to users is by incorporating a click-through “I
Accept” or “I Agree” button, which must be completed before the
visitor can access the website.
•Define the Scope: It is always beneficial to assert the website
owner’s rights (including IP rights) and define what all users can do
and cannot do.
•Jurisdiction and Applicable Laws: With a view to avoid any
confusion, always specify the jurisdiction(s) that will be applicable
along with relevant laws.
•Collection of Information: Always explicitly state what all
information will be collected, how it will be collected and for what
purposes it will be collected.
•Legal Disclaimer: Always include a legal disclaimer to dissolve the
liability for the content and performance of the website.
•Viruses: The terms should clearly prevent the introduction of
viruses and should dissolve any liability on the part of the website
owner if anything from the website infects the visitor’s computer.
•Cookies: Always ensure that Cookies, which are used to identify a
user’s preferences, cannot be stored on a user’s computer without
informing the user and without obtaining the consent of the user.
•Storing Personal Information: It should be clearly stated to the
user (in case his personal information will be stored) that where the
personal information will be stored, i.e. either locally, or over cloud in
another jurisdiction.
Website legal audit can help in detecting whether the website is breaching any laws, detecting whether the website is infringing any third party rights, and ensuring full legal compliance. www.techlaw.attorney