Foreign Affiliates - which law dictates T&C

[XSAILER]

Hi
We're starting a new affiliates program ( they get a commission for driving sales at our websites) and many of our affiliates are abroad - mostly European.

We have Terms and Conditions which they have to agree to, but in the event of a dispute whose Laws will take precedence - I'd assumed our's (we're in Scotland) but a German translator who is translating the T&C for us, has asked me the question, and I don't have the definitive answer.

There must be something in place for EC cross-border trade?
Any referrals to info sources would be great.
Many Thanks
x-sailer

[The Dispute Resolver]

There is no statute that dictates, save in consumer sales (but you are B2B).

Your T&Cs should have a jurisdiction clause saying which laws apply. Not only that but they should also state the courts of which country are the exclusive venue for litigation (saying, eg English law applies does not restrict cases to the English courts just to the law that shall apply).

But you must show your T&Cs regulate the contract which means the affiliate must have been given an opportunity to read them and agreed they will apply before he becomes an affiliate , not afterwards. So there are issues as to the location of the T&Cs and navigation and acceptance clicks. Ideally, to be effective, T&Cs should be positively clicked to bind not claim effectiveness by default of failure to click to decline.

Although this is not your issue, the exception to consumer sales is that, in certain circumstances dependent on the content of the website, the buyer can sue in his home country even though the T&Cs claim another country , i.e. the seller's, has jurisdiction. This is why it is so important for etailers to take every step possible to identify non-consumer customers. This is covered in our webinars on web legals (www.theresolver.co.uk).

[XSAILER]

Thanks, dispute resolver - and an interesting website you have there. I may be in touch in the future.
Kind Regards
X-sailer