‘I Agree’, But is it good enough?
‘I agree’, ‘Accept’ and ‘Proceed’ are some of the familiar terms to the modern and tech savvy world. These pop-ups are quite frequent while browsing the internet, these might appear like a barrier, but a mere click is what we need to get rid of it. However, there’s more to it than just a click. By clicking on or accepting these pop-ups, one agrees to the terms of the website and grants its consent to be bound by an agreement with the website owner. These are known as clickwrap agreements and their validity and enforceability is very well recognized by the Indian courts and under the Indian Contract Act, 1872.
What are terms and conditions?
- Inform the users what information you collect and how you utilize and secure it
Third party’s access to user information
Notification of changes
- Information of minors
Rights of the users
Recommendations while drafting terms and conditions
While, the T&C are not mandatory under the Indian laws, but they are recommended in order to form a legal agreement/ contract between the user and the website owner. Following are the terms that we recommend to be incorporated in the T&C:
T&C may have a clause mentioning who can use the website and who all are prohibited to do so such as restricting minors and incompetent persons from using the website may keep such an agreement valid under the Indian Contract Act, 1872.
Protect your intellectual property
It is of utmost significance to specifically mention about the ownership and use of the intellectual property on the website T&C. Your website may have a variety of intellectual property such as a trademark, logo, content, etc. which needs to be adequately protected from third party infringement. Similarly, the T&C may mention about the content submitted by the users, it may state that while submitting content, a user agrees to grant, the website owner, the license to use such content worldwide without any objection and that such content is public and not confidential.
If the website has links to third-party advertisers or product providers, the T&C may have a statement disclaiming any liability arising out of those links on the website.
Indemnity, warranties, disclaimers and limitations of liability
These may act as the most crucial clauses of a website T&C. To protect a website owner from liability for incidental or special damages that arise out of the users’ access to the website, the T&C may have a well-designed risk mitigation package.
The T&C to state that certain activities including, but not limited to, unlawful and inappropriate activities are prohibited on the website. This part should list down the types of activities which may be prohibited.
The T&C may state the events which may lead to the termination of the agreement between the users and the website owner. A termination clause in the T&C helps website owners prevent abuse of their website.
Notification of changes
It is advisable to specify the governing laws and jurisdiction vis-à-vis the T&C. Please note that if the website has a server in India, then, by default Indian law is applicable. However, the users can be made subject to laws of multiple jurisdictions.
To stay on the safer side, keep these key considerations in mind while you populate the two sections of your website:
- Tailor-made not ready-made
Keep it simple, but smart
Make sure they consent to it
Law is the light
Follow the laws and legal procedures applicable in your jurisdiction and include them in these sections.
Keep them updated