Terms and Conditions

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Terms and Conditions

Terms and Conditions

In the digital era, many new products or services are delivered or provided online or via apps. These online tools provide entrepreneurs with invaluable and easy access to huge potential markets. You only need to consider some of the world’s most famous app successes such as Snapchat, Uber or Deliveroo to see how online markets can help to get your business off the ground.

However, do you know the rules or risks associated with providing digital products or even just your company’s website?

Almost all websites and apps will require terms of use, terms of sale, a privacy policy, a cookie policy and a cookie banner. These key documents should make provision for the main issues that may arise between you and a user.

Terms of Use vs Terms and Conditions

Sometimes the terminology can be muddied and it is common for the blanket ‘T&Cs’ terminology to be used. However, there are important differences to be aware of. Any website or app should have terms of use. These terms relate to how a user may make use of your services via the platform they’re accessing. This will typically include provisions stating: what you will do, how the user may utilise the app or website and acceptable use requirements. Depending on where you are using your app or website to provide products or services to users, you may also need T&Cs of sale or supply. These will govern the terms of the transaction between you and the user and will cover those areas more familiarly associated with T&Cs such as, delivery times, refund polices and payment terms. Sometimes the terms of use and T&Cs of sale are seen combined, however, it is beneficial to have two distinct policies, for clarity and also for the purposes of incorporation as below.

App and Web T&Cs are not necessarily the same

Whilst T&Cs for websites and apps will cover much of the same ground, some consideration has to be given for the way in which they operate. For example, apps do not typically use cookies and so the cookie policy requirements may simply not apply. By contrast, apps tend to require the user to sign up and become a member to login and use the services. The app T&Cs should therefore explain what becoming a member means by holding an account, how that data is handled and will need to be provided before the user signs up to ensure these terms are correctly incorporated. In addition, the way in which T&Cs are incorporated will differ between apps and websites, reflecting the way users access them. For example, a notification should typically be used or a statement provided explaining to users that they agree to the T&Cs if they proceed to download the app. By contrast, this is typically covered in website terms of use by stating that use of the website will amount to deemed acceptance of its terms.
The critical difference in relation to T&Cs between apps and websites is the way users access them. Users will visit a website and have access to its content, material and features without first reviewing or accessing the terms. By contrast, the app industry requires a user to download an app and potentially make an account before the user can access or use the content made available via the app.

Privacy Policy

Many apps or websites do not offer to sell a product or service and are free for the user to make use of, such as Facebook or Instagram. Where a business is not making direct sales to users in some form or another then it will generally be relying on the data it recovers, or access to its users, to generate income. Websites now provide extraordinary capabilities to target advertising directly to an individual user’s interests. If this is the case in your business, it is especially important to have in place a privacy policy setting out how you will collect, use and store your user’s data. In any event, a privacy policy will be required even if you make direct sales as your business will still be collecting data such as payment details, addresses, full names and similar information to be able to make delivery of the goods or services you offer.

The requirements to properly set out how you will manage data that you collect from users will become even more critical with the implementation of the General Data Protection Regulation in May 2018. Please see here for further information on GDPR.

Cookie Policy and Banner

We come across them on a daily basis, and they are probably met with frustration, but if your website uses cookies you will need a cookie banner and a cookie policy in place. What are cookies? Cookies are small files that download to the user’s computer when they visit a website. One of the key benefits offered by cookies is the ability to remember a user’s details when revisiting the website so they don’t have to enter their login details on every occasion, or remembering what items the user had in their basket for checkout.

Businesses are responsible for providing users with clear information about the way they use cookies and ensuring users are given a clear choice about using those cookies.

Incorporation / Battle of the Forms

Once you have all your policies in place, it is vital that the terms of these documents are accepted and incorporated in your interactions with users. If they are not correctly incorporated or agreed to by users then they will not govern the relationship between you both and this would instead be subject to statute. As noted above, apps tend to require the user to actively download your app or create an account of some form. It is, therefore, very important that a copy of the relevant policies are made available to a user on the app store before downloading, so that the act of
hitting ‘download’ amounts to acceptance of the terms. By way of example, you may have noticed many apps appear with a pop up box before download commences, showing the user the T&Cs and offering them an ‘I accept’ button. Early incorporation is particularly important if you’re asking users to provide personal data as a part of the registration process to use your app. The terms governing the use of this information need to be available beforehand and not once the user has already input the information.

For a website, incorporation can be a bit trickier as there is generally not a requirement to actively subscribe before viewing the website content. It is therefore harder to know with certainty that a user has agreed the terms of the website. The website terms of use may state that by using the website the user agrees to its terms and a copy of the terms of use, cookie policy and data protection policy should be
made available, typically at the bottom of the webpage.

For terms of sale via a website it is crucial that these are shown to the user during the checkout process before the user proceeds to hit the ‘pay now’ button. This can be done by way of link and for confirmation a tick box confirming that these terms of sale are accepted.

It’s not just about compliance

Your T&Cs and other policies are an opportunity to set out in clear express terms how your product or offering will work, what you expect from your users and what they can expect from you. It can even be an opportunity to create brand value and favour with users. For example, some companies, such as John Lewis or M&S, are well known for offering customers above and beyond the statutory return rights and having ‘quibble free’ returns policies to give customers greater confidence in buying their goods. Web terms are also great opportunity to offer something more to the user than their statutory rights, such as free delivery/extended returns, price matching with competitors or extended warranties and guarantees.

If you want to discuss getting your website or app compliant with the necessary terms and policies, or if you just want to discuss how commercially they can work for you. Please contact Kirsty Simmonds, or you can give us a call on 0345 070 6000.