As businesses and marketplaces transition towards new age mediums such as web and mobile, complexities surrounding them also continue to grow.
Appropriate terms and conditions along with privacy policies are critical to every website and mobile application.
Important considerations while drafting terms and conditions for websites and mobile applications are discussed below.
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Limitation of Liability
While drafting terms and conditions for websites and mobile applications, limiting the liability is extremely crucial as no business intends to be held responsible for misleading the consumers. Accordingly, by having appropriate liability clauses, businesses can limit the liability of the business, its directors, officers and employees.
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One way to limit the liability of a business is by explicitly stating in website terms and conditions that information published on the website, while assumed to be accurate, may in fact be incorrect, out of date, or inaccurate to some extent. This is due to the probable reason that any changes in business may not be implemented on the website in real time.
Therefore, it is advisable to mention in website terms and conditions that the information is provided ‘in good faith’ on an ‘as is’ basis, which implies that the information should only be taken at face value and not be relied on to any extent beyond which the law requires.
However, certain information, such as, for example, but not limited to, contact details, is required to be accurate by law across multiple jurisdictions. In addition, website terms and conditions should be drafted to exclude the company, its directors, officers and employees of any liability for any representations or possible warranties.
Another important way to limit the liability of business is to explicitly acknowledge the relevant provisions of applicable laws and agree to applicable rights and remedies available to the consumers of your business. If website is offering products and/or services, such rights should be clearly stated in accordance with laws of appropriate jurisdictions. More specifically, in case of online marketplace business offering products or services through third party vendors, it should be clearly stated as to who is providing such products or services, so that appropriate consumer rights and remedies can be accordingly decided in light of vendors selling their products or offering their services.
Furthermore, with a view to secure business’s interest and appropriately acknowledging consumer’s rights and remedies, balanced website terms and conditions shall be drafted to clearly state all the inclusions to limit the applicability of any implied conditions or warranties, to the extent as permitted by the law. There can be numerous cases where such exclusions can be applied, such as, for example, but not limited to, disclaiming any implied or express guarantees, warranties, representations or conditions of any kind, which are beyond the scope of transactions between the business and the consumers, error free accessibility and use of the website, and the like.
In addition the above, liability of business can further be limited by drafting website terms and conditions in accordance with prices of products and services offered by the website. Various areas of law take into account the consideration, i.e. the price. Such areas of law include, contracts law, law of torts (negligence), equity, and the like.
IP Ownership & Third-Party Content
While drafting website terms and conditions, it is absolutely mandatory to include provisions specifying ownership of Intellectual Property (IP), whereby it should be explained that content (brand name, logo, images, videos, source code, and the like) of the website is protected by applicable Intellectual Property Rights (IPR), including, patents, copyrights, trademarks, and other proprietary rights.
IP ownership provision shall further state that copying, redistribution, use or publication by the user is strictly prohibited except as expressly allowed by other section of website terms. Accordingly, such provisions explicitly define the company’s ownership of website content. In addition, it is also advisable to mention that certain website content may belong to third parties, as and when applicable.
With regards to third-Party content, appropriate provision is required within website terms and conditions to clearly state that the business owner or company is not responsible or liable for third party content in any manner, and does not support or endorse the views stated in said third-party content.
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