Why does a website need Terms and Conditions?
Any company that has a website would need to have legal terms and conditions, for several reasons:
(1) if the website is a commercial website, e.g. any form of transaction is being done on the website, either as an e-commerce purchase, whether directly, by means of a credit card or indirectly by means of a bank transfer prior to shipping, or it is simply a transaction such as making reservations or bookings, it is creating a contract between the client to the website and the website owner. Whether a contract is created it is best that the terms of the contract are clearly defined, so that there is no misunderstanding, and so yes it is imperative that under these circumstances the website needs terms and conditions.
(2) if the website is simply an advertisement website, while it is less important that there are terms and conditions, there are several good commercial reasons why terms and conditions should be applied:
In either case, commercial or non-commercial, one must assume that the site will be viewed by people from around the world and so, irrespective of local legal requirements, the company will want to make it perfectly clear:
While in South Africa the Electronic Communications and Transactions Act no 25 of 2002 regulates this area of law, and specifically outlines what terms should be displayed, even internationally as a general rule electronic communications are now almost universally accepted as evidence in legal proceedings, and as such the relationship between any party viewing or transacting with the website and the website owner is one that will be governed by the law of contract. The underlying assumption is that when a party interacts with the website he or she enters into a contract with the website owner, and it is therefore best to ensure that the website owner has clearly defined what those contract will terms are.
The above is a broad overview of the necessity for terms and conditions on any website and specifically a commercial website, no matter where the website is in the world, and it is good business practice to ensure that such terms exist so that in the unlikely and unfortunate event of some sort of the dispute, the terms are clearly laid out. For example if the website is offering woodcarvings for sale, the website owner may clearly wish to define limits to how many can be ordered, delivery terms, and so forth, so that he/she does not end up in the situation of being sued for failure to deliver X number of wooden carvings (or wood carvings that are slightly different). Neither does the website owner wish to come across these pictures of woodcarvings on the website offering Kenyan woodcarvings for sale! If the website is offering hotel accommodation, the last thing the website owner needs is to be sued by some unhappy tourist who wants to claim for the cost of his world tour because of overbooking resulting in lack of accommodation.
So to sum it up:
08 Jun 2007
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - info@e-lawconsultancy.co.za
(1) if the website is a commercial website, e.g. any form of transaction is being done on the website, either as an e-commerce purchase, whether directly, by means of a credit card or indirectly by means of a bank transfer prior to shipping, or it is simply a transaction such as making reservations or bookings, it is creating a contract between the client to the website and the website owner. Whether a contract is created it is best that the terms of the contract are clearly defined, so that there is no misunderstanding, and so yes it is imperative that under these circumstances the website needs terms and conditions.
(2) if the website is simply an advertisement website, while it is less important that there are terms and conditions, there are several good commercial reasons why terms and conditions should be applied:
(a) there will be intellectual property displayed on the website, whether it is diagrams, pictures, product information or similar, and the website owner may wish to ensure that other people do not copy part or all of this information.
(b) in the event of information being supplied on the website, the website owner may not wish to be liable for people relying upon the information, in the event that the information may change.
(c) the website owner may object to other party(s) directly linking to his website, especially if these link go past the homepage, e.g. directly to specific product information bypassing his details,
(d) should the website owner be collecting personal information, e.g. "fill in the box and leave your e-mail address," the site owner may wish to have a privacy policy" which is in essence a policy telling people who do leave their e-mail addresses that he/she will not going to sell these e-mail addresses to the spammers, therefore making people feel more safe about actually leaving an address or other details.
(b) in the event of information being supplied on the website, the website owner may not wish to be liable for people relying upon the information, in the event that the information may change.
(c) the website owner may object to other party(s) directly linking to his website, especially if these link go past the homepage, e.g. directly to specific product information bypassing his details,
(d) should the website owner be collecting personal information, e.g. "fill in the box and leave your e-mail address," the site owner may wish to have a privacy policy" which is in essence a policy telling people who do leave their e-mail addresses that he/she will not going to sell these e-mail addresses to the spammers, therefore making people feel more safe about actually leaving an address or other details.
In either case, commercial or non-commercial, one must assume that the site will be viewed by people from around the world and so, irrespective of local legal requirements, the company will want to make it perfectly clear:
(a) who the website owner is
(b) what visitors to the website may or may not do, protecting the site's intellectual property
(c) how they are to treat information supplied on the website
(d) what reliance they may put upon the information supplied on the website
(e) the website owner may further wish to improve his/her business credibility by supplying any consumer protection or other details that he/she subscribes to
(f) outlining how he or she will protect any information supplied by means of the website from the client
(g) ensuring that there are no intellectual property or other violations on the website, that may be put there by mistake.
(b) what visitors to the website may or may not do, protecting the site's intellectual property
(c) how they are to treat information supplied on the website
(d) what reliance they may put upon the information supplied on the website
(e) the website owner may further wish to improve his/her business credibility by supplying any consumer protection or other details that he/she subscribes to
(f) outlining how he or she will protect any information supplied by means of the website from the client
(g) ensuring that there are no intellectual property or other violations on the website, that may be put there by mistake.
While in South Africa the Electronic Communications and Transactions Act no 25 of 2002 regulates this area of law, and specifically outlines what terms should be displayed, even internationally as a general rule electronic communications are now almost universally accepted as evidence in legal proceedings, and as such the relationship between any party viewing or transacting with the website and the website owner is one that will be governed by the law of contract. The underlying assumption is that when a party interacts with the website he or she enters into a contract with the website owner, and it is therefore best to ensure that the website owner has clearly defined what those contract will terms are.
The above is a broad overview of the necessity for terms and conditions on any website and specifically a commercial website, no matter where the website is in the world, and it is good business practice to ensure that such terms exist so that in the unlikely and unfortunate event of some sort of the dispute, the terms are clearly laid out. For example if the website is offering woodcarvings for sale, the website owner may clearly wish to define limits to how many can be ordered, delivery terms, and so forth, so that he/she does not end up in the situation of being sued for failure to deliver X number of wooden carvings (or wood carvings that are slightly different). Neither does the website owner wish to come across these pictures of woodcarvings on the website offering Kenyan woodcarvings for sale! If the website is offering hotel accommodation, the last thing the website owner needs is to be sued by some unhappy tourist who wants to claim for the cost of his world tour because of overbooking resulting in lack of accommodation.
So to sum it up:
(a) it reduces the various legal risks that could be associated with any website, especially one of a commercial nature
(b) it ensures the credibility of the website owner
(c) clearly defines any potential area of misunderstanding, that could lead to poor business relations.
(b) it ensures the credibility of the website owner
(c) clearly defines any potential area of misunderstanding, that could lead to poor business relations.
08 Jun 2007
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - info@e-lawconsultancy.co.za
