Description
It is essential for a website owner to lay down the terms and conditions by which users may access, view and use their website, the information which it contains and the materials or products which may be available on it together also with the “public” areas, chatrooms or fora where users may leave feedback or comments. These terms and conditions are essential to safeguard against unlawful, illegal or predatory activities and give recourse to the website owner to act.
In general, the basic provisions should include rules of access (i.e. is it just a website containing non-proprietary information or does the user need to be a subscriber or become a member to access and use it); if the website information is copyright and includes trade marks/trade names then this should be brought to the users attention and protected; any warranties and liabilities which may be deemed to attach to the website owner should be specified, disclaimed or limited. How enforceable such disclaimers are however, will vary considerably from jurisdiction to jurisdiction.
On the question of jurisdiction, by far the most difficult provision to draft and indeed enforce in any such terms/agreement is that relating to the applicable law. Since the internet is truly global and there are (usually) no boundaries for mass online use of website material, a cross-border/international approach is suggested in this Precedent with a few optional variations if preferred.
Most online terms and conditions now merely require the end-user/visitor to constructively accept the terms in the form of “Browse-wrap” or “Click-wrap” format whereby the terms are accepted by the end-user, in the case of click-wrap, by clicking an “Accept” (or “I agree”) button at the end of the Terms or, in the case of “Browse-wrap”, by merely continuing to view, browse, use, download or license/purchase content.
This precedent contains three typical examples of website terms and conditions; Example 1 relates to an information website; Example 2 relates to a website selling products and Example 3, to an information services website which the user must subscribe to in order to access and use the proprietary material.
