Accepting Terms and Conditions?

[bottlemaster]

Hello all. I'm new here, so apologies if this question has been discussed before:

How can I get my online customers to legally accept my Terms and Conditions of Sale? Do they need to actually tick a box on the website to indicate acceptance?

Or can I simply put a sentence in the actual Ts and Cs like this:

"The following terms and conditions apply to purchases made on this website. By placing an order, you are deemed to have accepted these terms and conditions."

In other words, are customers actually required to DO something to actively signify acceptance?

Thanks in advance.

 

[astutiumRob]

In other words, are customers actually required to DO something to actively signify acceptance?

If you want to stand any chance of the T&C's being upheld in court/over a dispute/etc
then Yes, you need them to _read_ (or say they've read) and actively acknowledge them

The "usual" online method is a checkbox which is not ticked and some javascript to prevent them continuing until they've viewed the terms and ticked the box

 

[Astaroth]

It does depend on the terms and conditions you are talking about. Some terms may come under legislation that requires an active agreement to them (eg opting in to mailing lists) rather than a passive agreement. That said, having spoken to many corporate legal advisors over the years there is no absolute definition of what would constitute active agreement -v- passive.

The more overt you make them, the more you make the user do something to acknowledge them the greater the chance you have of enforcing them (but also the greater the chance the user wont proceed)

 

[termsandconditions]

Acceptance is a complex area but there are some basic legal principles at work.

The strongest form of legally-enforceable agreement or contract has 3 clearly defined components:
1. The offer i.e. the work you will do/ the product you will sell plus your terms
2. The parties - clear identification of seller and buyer
3. Acceptance - agreement by both parties usually by way of a signature

This is why just having your terms floating around on your website is insufficient if, one day, you want your legal rights upheld in a court of law.

With e-commerce, you have to build them into your online sales process and gain your customer's express agreement to them commonly through the route that othellotech mentioned.

Best Regards

 

[MDG]

I came up against this when setting up my merchant account, my T&C's are all pretty standard stuff for an ecommerce site but they asked me to amend the site to include something that made it more clear to customers that by making a purchase they were accepting the T&C's.

Check box was one option I looked into but in the end they were happy with some wording that highlighted to customers before they completed the checkout that they were accepting the T&C's. The wording recommended to me was "By creating an account you indicate that you have read and accept our Conditions of Use".

 

[shopintegrator]

Hi,

We had our terms and conditions drawn up by a legal firm who specialised in online law. They advised us that we needed to have the shopper actively accept the terms and conditions (i.e. checkbox to accept) and to not let them proceed if they do not accept the terms and conditions.

As with everything to do with the law, it is never clear cut, hence the reason for
barristers. As termsandconditions said, its all about stacking things in your favour if a case goes to court.

 

[bottlemaster]

Thanks for all the help with this. I contacted several solicitors, but as a new business I just couldn't afford the rates (approx. £500). Therefore I had to create my own.

I did however send them to my local Trading Standards office, who checked them through for free and assured me they were watertight as far as they could see.

My website is now up and running. No sales yet but fingers crossed!

 

[termsandconditions]

Thanks for the update.

A slight word of warning though. Trading Standards' mission is to protect your customers, not you. So the weaker your terms, the happier they are.

I know you can't afford a 'proper' set just now, but e-mail me over what you have, I'll do a free written report for you to show you where the holes are. This means that when you can afford to complete them, you'll know where to focus your attention.

Best Regards

 

[MartCactus]

Acceptance is a complex area but there are some basic legal principles at work.

The strongest form of legally-enforceable agreement or contract has 3 clearly defined components:
1. The offer i.e. the work you will do/ the product you will sell plus your terms
2. The parties - clear identification of seller and buyer
3. Acceptance - agreement by both parties usually by way of a signature

Traditionally in contract law courses they'll teach that a contract has

1) offer
2) acceptance
3) consideration
4) intention to create a legal relationship.

Offer and acceptance is relatively straightforward. "Consideration" means an exchange of something of value given by both parties - ie one gives money, the other goods or services. So a promise by me to give 50 pounds to a charity isn't a contract unless they are agreeing to give me something of value in return.

And the intention to create a legal relationship excludes eg a family agreement - I offer £5 to my nephew to wash my car - probably not an intention to create a legally enforceable contract.

In terms of online sales one area to be aware of is the offer/acceptance part. If you offer something and the other party accepts, then if the other bits are in place, you have a contract. This is a problem if your website has incorrectly priced items and people buy those very cheap as a result (thereby "accepting" your offer).

Caselaw says that in many cases items in a shop are not offered for sale but are an "invitation to treat". So the customer makes the offer by taking the item to the counter to pay. Therefore if its incorrectly priced, the person at the counter can refuse to accept payment for it and no contract is made. This is very important on a web shop! Worth mentioning in terms and conditions that items are listed as an invitation to treat not offered for sale.

There is no reason a customer has to tick a box to make an online contract legal - but that probably makes it easier to prove they were aware of the T&Cs and agreed to them. But many things we buy in life without expressly agreeing to contract terms (eg a train ticket).

 

[business123]

The problem with online terms and conditions is that most customers don't print them off when they accept them (I know I don't), if you did that for every online order you placed, you'd end up with masses of paperwork!

I signed up for a service last year accepting the T&C's as part of the sign-up process, believing the contract to be for twelve months (in fact I am pretty sure that it was twelve months), it turns out it was for five years and when I checked recently and the current T&C's do state five years - I wonder how this would stand up in court if they decided to proceed (I've stopped paying after the first year).

So, what's to stop an online store amending their T&C's after you've placed an order if you don't have a hard copy to prove otherwise?