Terms & Conditions

Introduction

1.1    These terms and conditions shall govern the sale and supply of downloadable ebooks through our website, and the use of those ebooks.

1.2    You will be asked to give your express agreement to these terms and conditions before you place an order on our website.

1.3    Any statutory rights that you may have as a consumer are not affected by these terms and conditions.

  1. Interpretation

2.1    In these terms and conditions:

(a)    “we” means [name] (and “us and “our” should be construed accordingly);

(b)    “you” means our customer or prospective customer under these terms and conditions (and “your” should be construed accordingly);

(c)    “ebooks” means those ebooks that are available for purchase on our website; and

(d)    “your ebooks” means any such ebooks that you have purchased through our website (including any enhanced or upgraded version of the ebooks that we may make available to you from time to time).

  1. Order process

3.1    The advertising of ebooks on our website constitutes an “invitation to treat” rather than a contractual offer.

3.2    No contract will come into force between you and us unless and until we accept your order in accordance with the procedure set out in this Section 3[ or [alternative order procedure]].

3.3    To enter into a contract through our website to purchase downloadable ebooks from us, the following steps must be taken: [you must add the ebooks you wish to purchase to your shopping cart, and then proceed to the checkout; if you are a new customer, you must then create an account with us and log in; if you are an existing customer, you must enter your login details; once you are logged in, you must consent to the terms of this document; you will be transferred to our payment service provider’s website, and our payment service provider will handle your payment; we will then send you an initial acknowledgement; and we will either send you an order confirmation (at which point your order will become a binding contract) or we will confirm by email that we are unable to meet your order].

3.4    You will have the opportunity to identify and correct input errors prior to making your order[ by [describe process]].

  1. Prices

4.1    Our prices are quoted on our website.

4.2    We will from time to time change the prices quoted on our website, but this will not affect contracts that have previously come into force.

4.3    All amounts stated in these terms and conditions or on our website are stated [inclusive of VAT] OR [exclusive of VAT].

  1. Payments

5.1    You must, during the checkout process, pay the prices of the ebooks you order.

5.2    Payments may be made by [any of the permitted methods specified on our website from time to time].

  1. Licensing of ebooks

6.1    We will supply your ebooks to you in the format or formats specified on our website, and by such means and within such periods as are specified on our website.

6.2    Subject to your payment of the applicable price and compliance with these terms and conditions, we grant to you a [worldwide, non-expiring, non-exclusive, non-transferable] licence to make any use of your ebooks permitted by Section 6.3, providing that you must not in any circumstances make any use of your ebooks that is prohibited by Section 6.4.

6.3    The “permitted uses” of your ebooks are:

(a)    downloading a copy of each of your ebooks;

(b)    making, storing and viewing copies of your ebooks on [not more than 3] desktop, laptop or notebook computers;

(c)    making, storing and viewing copies of your ebooks on [not more than 3] ebook readers, smartphones, tablet computers or similar mobile devices; and

(d)    [printing [a single copy] of each of your ebooks solely for your own use].

6.4    The “prohibited uses” of your downloads are:

(a)    the publication, sale, licensing, sub-licensing, renting, transferring, transmission, broadcasting, distribution or redistribution of any ebook (or part thereof) in any format;

(b)    the editing, modification, adaptation or alteration of any ebook (or part thereof), and the creation of any derivative work incorporating any download (or part thereof);

(c)    the use of any ebook (or part thereof) in any way that is unlawful or in breach of any person’s legal rights under any applicable law, or in any way that is offensive, indecent, discriminatory or otherwise objectionable;

(d)    the use of any ebook (or part thereof) to compete with us, whether directly or indirectly;

(e)    [any commercial use of any ebook (or part thereof)]; and

(f)    the circumvention or removal of, or any attempt to circumvent or remove, the technological measures applied to any ebook for the purpose of preventing unauthorised use.

6.5    You warrant to us that you have access to the necessary computer systems, media systems, software and network connections to receive and enjoy the benefit of your ebooks.

6.6    All intellectual property rights and other rights in the ebooks not expressly granted by these terms and conditions are hereby reserved.

6.7    You must retain, and must not delete, obscure or remove, copyright notices and other proprietary notices on or in any ebook.

6.8    The rights granted to you in these terms and conditions are personal to you, and you must not permit any third party to exercise these rights.

6.9    If you breach any provision of these terms and conditions, then the licence set out in this Section 6 will be automatically terminated upon such breach.

6.10  You may terminate the licence set out in this Section 6 by deleting all copies of the relevant ebooks in your possession or control.

6.11  Upon the termination of a licence under this Section 6, you must, if you have not previously done so, promptly and irrevocably delete from your computer systems and other electronic devices all copies of the relevant ebooks in your possession or control, and permanently destroy any other copies of the relevant ebooks in your possession or control.

  1. Guarantee: cancellation right for all customers

7.1    This Section 7 applies to [all our customers that purchase any ebook under these terms and conditions].

7.2    If, within [30 days following the purchase of any ebook], you [notify us in writing that you require a refund and confirm to us in writing that have irreversibly deleted all the relevant files and derivatives thereof]:

(a)    we will promptly refund the corresponding payment to you;

(b)    your licence to use the ebook will automatically terminate,

subject to the express terms of this Section 7.

7.3    The guarantee set out in this Section 7 is subject to the following limitations:

(a)    [the rights under this Section 7 may only be exercised by a customer in relation to [one purchase] in each calendar year]; and

(b)    [we reserve the right not to provide a refund under this Section 7 if we reasonably suspect that the refund request amounts to an abuse of this guarantee].

[additional list items]

7.4    We will usually refund money using the same method used to make the payment.

7.5    Any statutory rights that you may have as a consumer are not affected by these terms and conditions.

  1. Distance contracts: cancellation right for consumers

8.1    This Section 8 applies if and only if you offer to contract with us, or contract with us, as a consumer – that is, as an individual acting wholly or mainly outside your trade, business, craft or profession.

8.2    You may withdraw an offer to enter into a contract with us through our website, or cancel a contract entered into with us through our website, at any time within the period:

(a)    beginning upon the submission of your offer; and

(b)    ending at the end of 14 days after the day on which the contract is entered into,

subject to Section 8.3. You do not have to give any reason for your withdrawal or cancellation.

8.3    You agree that we may begin the provision of ebooks before the expiry of the period referred to in Section 8.2, and you acknowledge that, if we do begin the provision of ebooks before the end of that period, you will lose the right to cancel referred to in Section 8.2.

8.4    In order to withdraw an offer to contract or cancel a contract on the basis described in this Section 8, you must inform us of your decision to withdraw or cancel (as the case may be). You may inform us by means of any clear statement setting out the decision. In the case of cancellation, you may inform us using the cancellation form that we will make available to you. To meet the cancellation deadline, it is sufficient for you to send your communication concerning the exercise of the right to cancel before the cancellation period has expired.

8.5    If you cancel an order on the basis described in this Section 8, you will receive a full refund of the amount you paid to us in respect of the order.

8.6    We will refund money using the same method used to make the payment, unless you have expressly agreed otherwise. In any case, you will not incur any fees as a result of the refund.

8.7    We will process the refund due to you as a result of a cancellation on the basis described in this Section 8 without undue delay and, in any case, within the period of 14 days after the day on which we are informed of the cancellation.

  1. Warranties and representations

9.1    You warrant and represent to us that:

(a)    you are legally capable of entering into binding contracts;

(b)    you have full authority, power and capacity to agree to these terms and conditions; and

(c)    all the information that you provide to us in connection with your order is true, accurate, complete, current and non-misleading.

9.2    We warrant to you that your ebooks will be supplied to you with reasonable care and skill.

OR

9.2    We warrant to you that:

(a)    your ebooks will be of satisfactory quality;

(b)    your ebooks will be reasonably fit for any purpose that you make known to us before a contract under these terms and conditions is made;

(c)    your ebooks will match any description of it given by us to you; and

(d)    we have the right to supply your ebooks to you.

9.3    All of our warranties and representations relating to ebooks are set out in these terms and conditions. To the maximum extent permitted by applicable law and subject to Section 10.1, all other warranties and representations are expressly excluded.

  1. Limitations and exclusions of liability

10.1  Nothing in these terms and conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law,

and, if you are a consumer, your statutory rights will not be excluded or limited by these terms and conditions, except to the extent permitted by law.

10.2  The limitations and exclusions of liability set out in this Section 10 and elsewhere in these terms and conditions:

(a)    are subject to Section 10.1; and

(b)    govern all liabilities arising under these terms and conditions or relating to the subject matter of these terms and conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these terms and conditions.

10.3  We will not be liable to you in respect of any losses arising out of any event or events beyond our reasonable control.

10.4  We will not be liable to you in respect of any business losses, including (without limitation) loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.

10.5  We will not be liable to you in respect of any loss or corruption of any data, database or software[, providing that if you contract with us under these terms and conditions as a consumer, this Section 10.5 shall not apply].

10.6  We will not be liable to you in respect of any special, indirect or consequential loss or damage[, providing that if you contract with us under these terms and conditions as a consumer, this Section 10.6 shall not apply].

10.7  You accept that we have an interest in limiting the personal liability of our officers and employees and, having regard to that interest, you acknowledge that we are a limited liability entity; you agree that you will not bring any claim personally against our officers or employees in respect of any losses you suffer in connection with the website or these terms and conditions (this will not, of course, limit or exclude the liability of the limited liability entity itself for the acts and omissions of our officers and employees).

10.8  Our aggregate liability to you in respect of any contract to provide services to you under these terms and conditions shall not exceed the greater of:

(a)    [amount]; and

(b)    [the total amount paid and payable to us under the contract].

  1. Variation

11.1  We may revise these terms and conditions from time to time by publishing a new version on our website.

11.2  A revision of these terms and conditions will apply to contracts entered into at any time following the time of the revision, but will not affect contracts made before the time of the revision.

  1. Assignment

12.1  You hereby agree that we may assign, transfer, sub-contract or otherwise deal with our rights and/or obligations under these terms and conditions[ – providing, if you are a consumer, that such action does not serve to reduce the guarantees benefiting you under these terms and conditions].

12.2  You may not without our prior written consent assign, transfer, sub-contract or otherwise deal with any of your rights and/or obligations under these terms and conditions.

  1. No waivers

13.1  No breach of any provision of a contract under these terms and conditions will be waived except with the express written consent of the party not in breach.

13.2  No waiver of any breach of any provision of a contract under these terms and conditions shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of that contract.

  1. Severability

14.1  If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

14.2  If any unlawful and/or unenforceable provision of these terms and conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

  1. Third party rights

15.1  A contract under these terms and conditions is for our benefit and your benefit, and is not intended to benefit or be enforceable by any third party.

15.2  The exercise of the parties’ rights under a contract under these terms and conditions is not subject to the consent of any third party.

  1. Entire agreement

16.1  Subject to Section 10.1, these terms and conditions[, together with [our download licence agreement],] shall constitute the entire agreement between you and us in relation to the sale and purchase of our downloads and the use of those downloads, and shall supersede all previous agreements between you and us in relation to the sale and purchase of our downloads and the use of those downloads.

  1. Law and jurisdiction

17.1  These terms and conditions shall be governed by and construed in accordance with [English law].

17.2  Any disputes relating to these terms and conditions shall be subject to the [exclusive] OR [non-exclusive] jurisdiction of the courts of [England].

  1. Statutory and regulatory disclosures

18.1  We will not file a copy of these terms and conditions specifically in relation to each user or customer and, if we update these terms and conditions, the version to which you originally agreed will no longer be available on our website. We recommend that you consider saving a copy of these terms and conditions for future reference.

18.2  These terms and conditions are available in [the English language only].

18.3  Our VAT number is [number].

  1. Our details

19.1  This website is owned and operated by [name].

19.2  We are registered in [England and Wales] under registration number [number], and our registered office is at [address].

19.3  Our principal place of business is at [address].

19.4  You can contact us:

(a)    [by post, to [the postal address given above]];

(b)    [using our website contact form];

(c)    [by telephone, on [the contact number published on our website]]; or

(d)    [by email, using [the email address published on our website]].

[additional list items]

 

 

Ebook download terms and conditions: drafting notes

We created this download agreement for websites selling downloadable ebooks to consumers and/or businesses.

This template includes detailed licensing provisions, including various optional limitations and prohibitions. For example, sellers may want to limit the number of copies of an ebook that may be viewed and printed. They may also want to limit the number and type of computers and other devices upon which the ebooks may be stored.

Optional licensing prohibitions in the download agreement include prohibitions upon the publication, sale, licensing, sub-licensing, renting, transferring, transmission, broadcasting, distribution, redistribution, editing, modification, adaptation or alteration of ebooks.

The ebook download agreement is designed to aid compliance with the Electronic Commerce (EC Directive) Regulations 2002 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

You may also be interested in our ebook disclaimer, designed to be incorporated into an ebook.

Section 1: Introduction

Section 1.3

Optional element. Will this document apply to any contracts with consumers (B2C transactions)?

Section 2: Interpretation

Section 2.1

  • What is the name of the person or entity contracting to supply the downloads?

Section 3: Order process

Section 3.1

Optional element.

Section 3.2

Optional element.

  • Are there any alternative order procedures?
  • Identify the alternative order procedure (or the place where the alternative order procedure is described).

Section 3.3

Regulation 9(1)(a) of the Electronic Commerce (EC Directive) Regulations 2002: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (a) the different technical steps to follow to conclude the contract”.

One such step should be the provision of an acknowledgement of receipt of the order “without undue delay and by electronic means” (Regulation 11(1)(a)). This requirement does not however apply “where parties who are not consumers have agreed otherwise”.

  • What steps must be in order for a contract for the sale and purchase of downloads through the website to come into force?

Section 3.4

Optional element.

This is intended to meet the requirements of Regulation 9(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002, which states: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (c) the technical means for identifying and correcting input errors prior to the placing of the order.”

See also Regulation 11(1)(b): “Unless parties who are not consumers have agreed otherwise, where the recipient of the service places his order through technological means, a service provider shall … make available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order”.

  • Can you describe the error identification and correction process?
  • Describe process.
  • Regulation 9, Electronic Commerce (EC Directive) Regulations 2002 – http://www.legislation.gov.uk/uksi/2002/2013/regulation/9/made

Section 4: Prices

Section 4.3

Optional element. Is the website operator registered for VAT?

VAT-inclusive selling prices are usually shown to consumers, and in some cases there is a legal obligation to do so. VAT-exclusive prices can be, and usually are, shown to business customers.

  • Will fees be stated inclusive or exclusive of VAT?

Section 5: Payments

Section 5.2

  • What payment methods may be used?

Section 6: Licensing of ebooks

Section 6.2

  • What sort of licence is being granted?

Section 6.3

  • How many computers may hold copies of each download?
  • On how many mobile devices may copies of a download be stored?
  • Do customers have the right to print a copy or copies of the download?
  • How many copies of a download may be printed?

Section 6.4

  • Do you wish to prohibit any commercial use of a download?

Section 6.5

Optional element.

Section 6.7

Optional element.

Section 6.8

Optional element.

Section 6.9

Optional element.

Section 6.10

Optional element.

Section 6.11

Optional element.

Section 7: Guarantee: cancellation right for all customers

Optional element.

Section 7.3

Optional element.

Section 7.4

Optional element.

Section 7.5

Optional element. Will this document apply to any contracts with consumers (B2C transactions)?

Section 8: Distance contracts: cancellation right for consumers

Will the trader contract with any consumers (defined as individuals “acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession”)?

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply special rules to distance contracts between traders and consumers (i.e. B2C) for the supply of digital content entered into via a website, as well as certain other contracts (not discussed here). The Regulations, effective on 13 June 2014, replace the Consumer Protection (Distance Selling) Regulations 2000. Unfortunately, the rules are too complex to describe in detail here, and you should read the Regulations or at least a more detailed summary of them. A handful of the key points have been set out below.

First, traders must make certain pre-contract disclosures. The information traders need to disclose is set out in Schedule 2 to the Regulations, and includes information about the cancellation rights under the Regulations. Some of the information may be contained in terms and conditions or other standard documents, whilst some will usually be customer-specific.

Second, certain of the Schedule 2 information (mostly concerned with the characteristics of the goods and services, pricing, payments and contract duration – see Regulation 14(2)) must be provided directly before the order is placed. This could be on a page of a checkout process where the consumer is asked to check the details of the order before paying.

Third, when placing an order the consumer should explicitly acknowledge the obligation to pay. If the order is made by pressing a button, the button text should be “Order with obligation to pay” or something equivalent.

Fourth, the trader must send to the consumer confirmation of the contract on a “durable medium”. Typically, this will be a confirmation email. The confirmation should repeat any Schedule 2 information that was not previously given on a durable medium.

Fifth, the trader should make available to consumers a partially filled-in copy of the model cancellation form set out in Schedule 3(B). The trader may also wish to make available a filled-in copy of the model instructions for cancellation set out in Schedule 3(A) – but one of the purposes of the distance selling provisions in this document is to replace those model instructions. If you use both, ensure they are consistent.

Sixth, the trader should have in place appropriate procedures to comply with cancellation requests. In summary, contracts to purchase digital content may be cancelled at any time within the period of 14 days following the coming into force of the contract (subject to the early provision rules, described below).

Seventh, in the case of contracts for digital content which will or may be provided before the end of the cancellation period (surely that is almost all of them), and on the assumption that such contracts should not be cancellable, the consumer should be required to give “express consent” to supply before the end of the cancellation period, and must “acknowledge” that the right to cancel will be lost. In addition, the trader must include in its confirmation (mentioned as the fourth point above) “confirmation of the consent and acknowledgement”.

There are lots of exceptions and special rules that are not covered in this note, so do read the Regulations or some more detailed guidance.

  • Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 – http://www.legislation.gov.uk/uksi/2013/3134/made

Section 8.3

The consumer should be asked to give “express consent” to the provision of digital content before the end of the cancellation period, and must acknowledge the consequent loss of the cancellation right (eg by ticking a checkbox, during checkout, next to a statement clearly specifying the consent and acknowledgement). In addition, the trader must, in its confirmation of the contract, include a confirmation of this consent and acknowledgement. See Regulations 16 and 36.

Section 8.4

The trader must make available to the consumer a Schedule 3(B) cancellation form. In the Regulations, “something is made available to a consumer only if the consumer can reasonably be expected to know how to access it” (Regulation 8). If the trader gives the consumer the option of cancelling by means of a web form and the consumer uses that web form to cancel, the trader must acknowledge the cancellation “on a durable medium without delay”. See Regulation 31.

Section 9: Warranties and representations

Section 9.2

These warranties reflect the position under Chapter 3 of the Consumer Rights Act 2015 (“CRA”). In relation to consumer contracts regulated by the CRA, the warranties cannot be excluded. Special remedies for breach of the warranties are set out in the CRA.

Section 10: Limitations and exclusions of liability

Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable.

Exclusions and limitations of liability in UK B2B contracts are primarily regulated by the Unfair Contract Terms Act 1977 (“UCTA”), while those in UK B2C contracts are primarily regulated by the Consumer Rights Act 2015 (“CRA”).

Contracts regulated by UCTA cannot exclude or restrict a party’s liability for death or personal injury resulting from negligence (Section 2(1), UCTA). Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967).

In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other’s written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA).

UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes.

Consumer contracts regulated by the CRA cannot exclude or restrict liability for death or personal injury resulting from negligence (Section 65(1), CRA). Further, any “unfair term” in such a contract will not be binding on the consumer (Section 62(1), CRA). A contractual term is unfair “if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer” (Section 62(3), CRA).

Sections 47 and 57 of the CRA prevent a trader using exclusion clauses to abridge the rights of a consumer in relation to digital content and services respectively.

Section 47 of the CRA provides that a term of a contract to supply digital content is not binding on the consumer if it excludes or restricts the trader’s liability under the provisions of the CRA relating to: (a) digital content being of satisfactory quality; (b) digital content being fit for a particular purpose; (c) digital content being as described; (d) pre-contract information; or (e) the trader’s right to supply the digital content.

Section 57 of the CRA provides (inter alia) that a term in a services contract will not bind consumers if it excludes any liability of the trader to provide the services with reasonable care and skill.

A “grey list” of provisions that may be regarded as unfair is set out in Part 1 of Schedule 2 to the CRA. Some of these have implications for the drafting of limitations and exclusions of liability. For example, they include: “[a] term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader.”

“Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice” (Section 65(2), CRA).

The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated. The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should usually be drafted as an independent term, and be numbered separately from the other provisions.

These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.

  • Unfair Contract Terms Act 1977 – https://www.legislation.gov.uk/ukpga/1977/50
  • Consumer Rights Act 2015 – http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

Section 10.1

Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.

Section 10.4

Optional element.

Section 10.5

Optional element.

  • Should this exclusion of liability apply only to non-consumers?

Section 10.6

Optional element.

  • Should this exclusion of liability apply only to non-consumers?

Section 10.7

Optional element. If the website operator is a limited liability entity (eg a limited company), do you want to expressly exclude liability on the part of officers and employees?

Section 10.8

Optional element. Do you want to include a liability cap in this document?

Liability caps may be unenforceable in practice.

  • Do you want to include a liability cap in this document?
  • What monetary amount should be used in the liability cap?
  • What floating amount should be used in the liability cap?

Section 12: Assignment

Section 12.1

Part 1 of Schedule 2 to the Consumer Rights Act 2015 contains an indicative and non-exhaustive list of terms which may be regarded as unfair. Included in this list are terms having “the object or effect of allowing the trader to transfer the trader’s rights and obligations under the contract, where this may reduce the guarantees for the consumer, without the consumer’s agreement”.

  • Do you want to explicitly state that consumers will not lose any “guarantees” as a result of an assignment?

Section 15: Third party rights

Optional element.

This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.

  • Contracts (Rights of Third Parties) Act 1999 – https://www.legislation.gov.uk/ukpga/1999/31

Section 16: Entire agreement

Section 16.1

  • Do any other documents affect the contract (e.g. a separate licence document)?
  • Which other documents?

Section 17: Law and jurisdiction

The questions of which law governs a document and where disputes relating to the document may be litigated are two distinct questions.

Section 17.1

This document has been drafted to comply with English law, and the governing law provision should not be changed without obtaining expert advice from a lawyer qualified in the appropriate jurisdiction. In some circumstances the courts will apply provisions of their local law, such as local competition law or consumer protection law, irrespective of a choice of law clause.

  • Which law should govern the document?

Section 17.2

In some circumstances your jurisdiction clause may be overridden by the courts.

  • Should the jurisdiction granted be exclusive or non-exclusive? Choose “non-exclusive” jurisdiction if you may want to enforce the terms and conditions against users outside England and Wales. Otherwise, choose “exclusive jurisdiction”.
  • The courts of which country or jurisdiction should adjudicate disputes under the document?

Section 18: Statutory and regulatory disclosures

Optional element.

This provision includes disclosures that may aid compliance with certain statutes and regulations, including the Electronic Commerce (EC Directive) Regulations 2002.

Since the end of the Brexit transition period, UK traders no longer need to publish information about the EU’s online dispute resolution (ODR) platform on their websites. Moreover, most UK traders no longer have any obligations to use alternative dispute resolution (ADR) mechanisms to handle disputes, or to publish information on their websites about such mechanisms.

However, EU traders may need to include relevant information about the ODR platform and their ADR providers in their published legal documentation in accordance with Article 14 of Regulation 524/2013 (Regulation on Consumer ODR).

Article 14(1) provides that:

“Traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, shall provide on their websites an electronic link to the ODR platform. That link shall be easily accessible for consumers. Traders established within the Union engaging in online sales or service contracts shall also state their e-mail addresses.”

Article 14(2) provides that:

“Traders established within the Union engaging in online sales or service contracts, which are committed or obliged to use one or more ADR entities to resolve disputes with consumers, shall inform consumers about the existence of the ODR platform and the possibility of using the ODR platform for resolving their disputes. They shall provide an electronic link to the ODR platform on their websites and, if the offer is made by e-mail, in that e-mail. The information shall also be provided, where applicable, in the general terms and conditions applicable to online sales and service contracts.”

Where the Regulation on Consumer ODR applies, add the required information here or elsewhere in this document.

  • Regulation (EU) 524/2013 (Regulation on consumer ODR) – https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:165:0001:0012:EN:PDF

Section 18.1

Optional element.

  • Regulation 9, Electronic Commerce (EC Directive) Regulations 2002 – http://www.legislation.gov.uk/uksi/2002/2013/regulation/9/made

Section 18.2

Optional element.

This is intended to meet the requirements of Regulation 9(1)(d) of the Electronic Commerce (EC Directive) Regulations 2002.

  • What language or languages will the document be available in?
  • Regulation 9, Electronic Commerce (EC Directive) Regulations 2002 – http://www.legislation.gov.uk/uksi/2002/2013/regulation/9/made

Section 18.3

Optional element. Is the website operator registered for VAT?

  • What is the website operator’s VAT number?

Section 19: Our details

Optional element.

The provisions here reflect a mixture of EU law and UK law requirements relating to contact information.

All services covered by the Ecommerce Directive (which was implemented in the UK through the Electronic Commerce (EC Directive) Regulations 2002) must provide a name, a geographic address (not a P.O. Box number) and an email address.

Under distinct UK legislation, UK companies must provide their corporate names, their registration numbers, their place of registration and their registered office address on their websites (although not necessarily in this document). Sole traders and partnerships that carry on a business in the UK under a “business name” (i.e. a name which is not the name of the trader/names of the partners or certain other specified classes of name) must also make certain additional disclosures: (a) in the case of a sole trader, the individual’s name; (b) in the case of a partnership, the name of each member of the partnership; and (c) in either case, in relation to each person named, an address in the UK at which service of any document relating in any way to the business will be effective. All operators covered by the Provision of Services Regulations 2009 must also provide a telephone number.

  • Electronic Commerce (EC Directive) Regulations 2002 (original version) – https://www.legislation.gov.uk/uksi/2002/2013/made
  • Provision of Services Regulations 2009 – https://www.legislation.gov.uk/uksi/2009/2999
  • Directive 2000/31/EC (Directive on electronic commerce) – https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32000L0031

Section 19.1

  • What is the name of the company, partnership, individual or other legal person or entity that owns and operates the website?

Section 19.2

Optional element. Is the relevant person a company?

  • In what jurisdiction is the company registered?
  • What is the company’s registration number or equivalent?
  • Where is the company’s registered address?

Section 19.3

Optional element.

  • Where is the relevant person’s head office or principal place of business?

Section 19.4

Optional element.

  • By what means may the relevant person be contacted?
  • Where is the relevant person’s postal address published?
  • Either specify a telephone number or give details of where the relevant number may be found.
  • Either specify an email address or give details of where the relevant email address may be found.