Legal Advice

BEST PRACTICE

UK Companies with an Internet presence need to consider whether the level of advice given to customers using the site is sufficient.

It is at the very least good practice to provide terms and conditions on a ‘web’ site, and at worst it is illegal not to do so - depending on the product, the market place jurisdiction, the data being captured, and the use of such data.

UKI provide an initial consultation service to formally review Internet sites, to provide summary advice with regard to areas such as:

Terms of Trading 
Terms & Conditions of the Contract 
Hypertext Links 
Jurisdiction of the contract 
Warranties & Disclaimers 
Privacy Policy

This initial review will deliver a detailed report recommending the necessary remedies to any shortfall uncovered. The review would be undertaken in the first instance by a specialist IT and web site contracts lawyer specifically retained by UKI as a consultant in the provision of legal advice to UKI clients, relating to their Internet presence.

CONTACT US

Contact legal@ukinternet.co.uk

DETAILED INFORMATION

The areas to be covered would include, but not be limited to, the following:

Terms of Trading:

There is a need to control who your customers are, in the sense that you could be offering goods and services to a wider geographic market than you intend. It is the nature of the Internet to be without geographic boundaries, and the very nature of offering goods and/or services in this nature could lead to breaking the laws of another country. E.g. it is illegal in Germany to make “two for one” offers or to use free offers to promote goods.

At least, as a part of the European Union, pre-contractual communications on the Internet need to automatically eliminate other jurisdictions, which could be assumed to apply in this open market.

Terms and Conditions of Contract:

Such Terms and Conditions will include basic information on: 

Delivery 
Payments 
Returns 
Refunds 
Acceptance of Order 
‘Contact us’

And, Legal terms including: 

Ownership of the ‘site'
Right to amend terms and conditions 
Limitation of liability/exclusion of Liability for consequential losses, business loss, loss of profits, but granting liability for death/injury which cannot be contracted out of 
Choice of Law 
Reservation of right/copyright in site 
Protection of intellectual property rights and 3rd party prohibition 
Best endeavours to ensure accuracy of site content

Hypertext Links:

This is a risky area of the Internet, as these links can potentially avoid disclaimers or other such important contractual provisions.

A level of responsibility exists on the provider of such links to ensure that any links are not defamatory of any third party, or may offend.

At the least, warnings need to be shown, as a disclaimer as to the accuracy and content of web sites, which may be accessed via the site.

Jurisdiction of Contract:

This can have a sizeable effect on certain clauses especially restrictions and exclusions and whether they are enforceable. The choice of law clause should be included in the web site terms and conditions.

Warranties and Disclaimers:

Depending on the product, you need to declare the level of warranty you are giving the customer, e.g. whether limited or lifetime and any exclusion such as labour.

Certain facts, such as non-transferrable warranties, need to be declared.

An express declaration needs to be made as to whether certain warranties are not provided, but excluding statutory warranties.

A general statement needs to be provided to cover non-liability for any non-statutory potential breach and damage, including a ‘virus’ clause and the security of data transmitted over the Internet.

A clause is required referring to, best/reasonable efforts to comply with the availability of advertised goods/and or services, but no warranty as the accuracy, correctness, availability, right to substitute, etc.

Declare, no representations that the ordering process, or indeed the site, will be uninterrupted or error free, keeping in mind all obligations relating to the Trade Descriptions Act, EU Distance Selling Directive, Sale of Goods Act, etc. that cannot be contracted out of.

Privacy Policy:

This should be a separate written policy declaring the web site owners, obligations to the customer visiting the web site, contracting via the web site, and/or registering on the web site.

The 1998 Data Protection Act governs the express permission to use this data and the customer has to give the web owner the express permission to use this data for any other purpose than the purpose of complying with the contract. E.g. Marketing or providing details to a third party.

The Data Protection legislation has to be addressed country by country if the site is intending to contract outwith the UK.

E&OE : Last Updated : 7th June 2007