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Your terms and conditions are an essential part of an online business. While many people may skip past the terms and conditions without reading them, they create a formal contract between you and your customer. If you run an eCommerce site or online store, you may run into a situation where you need to enforce terms and conditions against a customer. Therefore, you will need to ensure that your terms and conditions are validly accepted by anyone who purchases products from your eCommerce website. This article will outline:
- what you need for a contract to be valid under contract law;
- what challenges often arise when enforcing terms and conditions; and
- how you can resolve these issues.
What Do I Need for a Contract to Be Valid?
Terms and conditions are effectively a contract. Therefore, to enforce this document, it is a legal requirement to have all the elements of a valid contract. A contract has three key elements, which the table below outlines.
| An Offer | This is an offer to the customer. In this case, it will likely be the sale of goods for a specific price with the terms outlined. |
| Acceptance | They accept your offer for the product for the given price, which is typically the process of buying the good or service online. |
| Consideration | The provision of something in exchange for a good or service, typically money. |
What Challenges Often Arise With Enforcing Terms and Conditions?
Most commonly, it is easy to determine that there has been an offer and consideration provided. The offer is typically the act of listing the goods online and providing the terms and conditions, while consideration refers to the money paid for the goods.
Therefore, most issues generally arise with accepting the terms and conditions. However, there are a few steps that you can take to ensure that the terms and conditions can be clearly:
- viewed;
- accepted; and
- enforced.
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How Can I Solve These Issues?
Providing a Check Box
To ensure that there has been an acceptance of your terms and conditions, it is a good idea to set out a check box in your payment portal. This check box should ask individuals if they have accepted your terms and conditions before they complete the purchase. Further, you must also include a clear link to the terms and conditions so that the customer has the opportunity to read them. However, you cannot pre-check the checkbox that indicates they have read the terms and conditions. The customer must do that themselves.
Accessibility
Additionally, the terms and conditions must be accessible and easy to read for a layperson. If a user cannot reasonably comprehend them, you may have issues enforcing them down the line. If you are concerned that customers may not understand your terms and conditions, make them easier to read. It is better to be safe than sorry.
You should also ensure they are easy to read by website users. In the UK, if the display box for terms and conditions is too small or difficult to navigate, they may be void. You should not include hyperlinks to other additional terms not included in the main terms and conditions document. You should set them out in one place and should not require the customer to chase other documents to understand what they agree to.
Fairness
Finally, your terms and conditions should be contractually fair. If the conditions cause a detriment to your customer or create a massive imbalance in fairness, then the court may not enforce your terms and conditions.
To protect your business, ensure supplier contracts meet your business’ needs. Our free Commercial Contracts Checklist will help.
Key Takeaways
Your terms and conditions are critical to your business, as they create a contract between you and your customer. There may come a day when you need to enforce your eCommerce terms and conditions. Simply putting your terms and conditions on your website may not be sufficient to create a binding contract when a customer purchases goods from your website. Therefore, ensuring that your terms and conditions form a valid contract with all the necessary elements is vital to avoid legal disputes.
If you need help with creating terms and conditions, our experienced ecommerce lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.
Frequently Asked Questions
No, you do not need to go so far as writing your terms and conditions in a specific font. You just need to make sure that they are legible and easy to understand.
You need to make sure that your terms and conditions are easily accessible before a customer purchases your product. Linking to them at some point during the purchasing process is usually sufficient. You should also include them on the home page of your website.
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