E-commerce and Website Terms and Conditions

As an e-commerce provider, you should ensure that your terms and conditions (Terms Conditions) and terms conditions agreement satisfy the following concerns: 

• They are fit for purpose and minimise your potential liability to third parties as far as possible
• They cover the nature of what is being supplied, whether that is goods, services, digital content or a mixture
• They allow you to retain the title to your goods until you have been paid for them
• They adequately deal with the cancellation rights of both parties; they include a clear clause on disputes and governing law
• They comply with consumer regulations where the supply of goods or services is B2C

In practice, a well-structured terms and conditions agreement should be drafted in a way that users can understand, and each clause should be clear, applicable, and enforceable across your website, mobile site, and app. 

The method by which a business contracts with its customers and users (online, via the telephone or email, on a doorstep basis, or from a bricks and mortar shop) will determine how the contract with that customer comes into effect, what users agree to, and what laws and regulations apply to the contract. 

Businesses operating via a website only (e-commerce) should ensure that they have e-commerce Terms Conditions and a terms conditions agreement in place on their site, including an enforceable clause set that reflects how users place orders. E-commerce Terms Conditions contain terms which are unique to the online selling of goods, such as how an order is placed and accepted, how payment is made, how access is provided, and how and when the customer is entitled to cancel their order. 

Online businesses selling goods to consumers should also consider implementing a privacy policy and cookies policy to aid compliance with data protection law. Your website terms should sit alongside a privacy policy and cookies policy on the site, and users should be able to access them easily before they agree to buy or create an account. 

Having your own set of T&Cs / Terms Conditions and a terms conditions agreement on which you always do business provides you with: 

• Certainty - you know the terms on which you are trading on and the rights you have in regard to your customers and users
• Security - you are not subject to someone else’s terms, which may be onerous in their obligations and put you at risk of being liable for breach of contract
• Flexibility - you can have a master set of terms providing structure for your business, while dealing with customers on an order-by-order basis, supported by a consistent clause and section layout. 

If you are a trader who sells or supplies goods or services to consumers and users over the internet, you need to ensure you comply with the legal rules on “distance contracts”, and that your website Terms Conditions and terms conditions agreement are enforceable.

We can help you to identify whether your contracts fall within the scope of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

If your contract is within scope, we can assist in ensuring your website terms and conditions of sale or supply are compliant, include the required section headings, and contain the right clause drafting so users can access them on the site before they agree.

We can also help you create a Terms Conditions Template for distance sales and then tailor each clause to your eCommerce checkout flow, including how users agree, how access is granted, and what changes are permitted. 

A contract concluded at distance is one which is between a trader and a consumer which does not involve the simultaneous physical presence of the trader and consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded. 

Key provisions which are required for distance contracts include the following clause areas: 

• Pre contract information: the trader must provide the consumer with certain information prior to entering into a contract (for example, identity of trader, place of business, total price, the complaint process).  
• Such information will form part of the contract and therefore it is logical for the required information to be included in the website terms and conditions of sale or supply which are available on the site prior to entering into the contract
• Durable medium: the consumer must be provided with written confirmation of all the legally required pre-contract information on a durable medium (for instance, by email)
• Payment trigger: the trader must make it clear where proceeding with the transaction or passing to the next webpage will trigger payment (for example by labelling the payment button “order with obligation to pay”)
• Additional payments: traders must seek the consumer’s express prior consent before taking any additional payments (pre-ticked boxes will not be permitted)
• Right to cancel: consumers must be given the right to cancel the contract within a cooling-off period of 14 days.
• This period may be extended by up to 12 months where information about the right to cancel is not provided by the supplier. The right to cancel may, in certain circumstances, be waived by a consumer (where, for example, they request services to be provided before expiry of the 14 day period)
• Delivery: an obligation on the trader to deliver goods within 30 days, unless agreed otherwise with the consumer. These rules determine when risk in goods will pass to the consumer
• Helpline: a ban on making consumers use a premium rate telephone line to contact the supplier about the existing contract.  

• To reduce disputes, your terms conditions agreement should include a clear support section and, where relevant, a disclaimer clause setting out limits on liability and the way users should use the site. 

Website owners should consider taking the following steps: 

• Registering a trademark with the relevant authority. This provides the owner with exclusive rights to use the mark in relation to their goods or services.  
• Copyrighted content: ensure all content on their website, site pages, app, and mobile site, such as text, images, videos, and software, is original or appropriately licensed and include copyright notices on your website to indicate your ownership of the same.  
• Terms of Use / terms use: include terms of use on your website and in your Terms Conditions that prohibit users from infringing their intellectual property rights and explain how users may access and use website content.  
• This terms use section should link back to your Terms Conditions and make clear that users must not misuse the site, the app, or any mobile functionality.  
• Take-down notices: issue take-down notices to internet service providers or search engines to remove infringing content from the internet. Monitoring: Regular monitoring of the internet can help website owners identify and address instances of intellectual property infringement. 

UK website providers are legally obliged to include certain information on their websites and site pages (whether they are trading websites or not). The information which websites must display includes the following: 

• the name of the service provider;
• the geographical address where the service provider is established; details of the service provider, including their email address;
• in respect of companies, their registered name, registered company number, their registered office address and where in the UK the company is registered;
• and in respect of any regulated professions (such as solicitors or doctors), the details of any professional body with which the professional is registered, their profession title, the member state in which that title has been awarded, and reference to the professional rules applicable to that service provider.  

Our Solicitors can confirm what information is legally required for your site, and can also advise on regulatory compliance points for a commercial e commerce business. 

Additional information is required where the website operator is providing services, engaging in contracts which will be concluded online or contracting with a customer.  

You should not copy other websites’ terms and conditions for a number of reasons.

Any terms are protected by copyright so if you copy and use terms and conditions from other websites then this will likely constitute copyright infringement, and the copied clause drafting may not be enforceable for users of your site.

The terms may also not be appropriate to your offering or reflect what your website does, and the quality of the drafting is not guaranteed.

A Terms and Conditions Template found online is often incomplete; it may not be applicable to your site or enforceable, and it can fail to include the right clause structure for your account, access, and dispute process. 

Yes, if your website uses cookies. It should explain what cookies are, how they are used on your website and site pages, and how users can manage their cookie preferences. It should also provide information about any third-party cookies that are used on your website. 

Yes, if you collect any personal data from users through your website or app. A privacy notice is a legal requirement in many countries, including the European Union, under the General Data Protection Regulation (GDPR) and other data protection laws, and users should be able to access it on the site. 

The privacy notice should explain what personal data is being collected, how it is being used, who it is being shared with, and how long it will be retained, in a way users can understand. 

It should also provide information about users' rights under data protection laws, such as the right to access their data, rectify any inaccuracies, and request erasure, and how users can contact you for support. 

It enables businesses to comply with their “fair processing” obligations and to obtain a user’s “freely given, specific and informed” consent to processing personal data.  It should be accessible at every point in which personal information is collected. We can also add an account section to explain how users create, access, and secure their account, and what happens if you need to suspend access to protect users, your site, or your business. 

Yes we can! Once you have a website developed it will need to be hosted, which will usually be provided under a hosting agreement. 

Whether you provide hosting services or are looking for a hosting provider for your website, businesses should ensure that the hosting agreement outlines the provider's responsibilities, including data backup and cybersecurity measures, and any limitations of liability clauses and disclaimer clause wording which can limit the hosting provider's liability in the event of data loss or system downtime. 

It's important for businesses to work with experienced IT lawyers and Solicitors who can provide guidance on negotiating and drafting hosting agreements to ensure that their legal rights are protected, and that changes to the hosted site are managed properly. If you would like to discuss your website terms, we offer a free initial consultation with our team in our London office or remotely, and our Solicitors and lawyers can support you with negotiating, drafting, and reviewing the terms conditions agreement.