Terms and conditions of use

  1. Introduction

1.1    These terms and conditions shall govern your use of our website.

1.2    By using our website, you accept these terms and conditions in full; accordingly, if you disagree with these terms and conditions or any part of these terms and conditions, you must not use our website.

1.3    If you [register with our website, submit any material to our website or use any of our website services], we will ask you to expressly agree to these terms and conditions.

1.4    You must be at least [18] years of age to use our website; by using our website or agreeing to these terms and conditions, you warrant and represent to us that you are at least [18] years of age.

1.5    Our website uses cookies; by using our website or agreeing to these terms and conditions, you consent to our use of cookies in accordance with the terms of our [privacy and cookies policy].

  1. Copyright notice

2.1    Copyright (c) [year(s) of first publication] [full name].

2.2    Subject to the express provisions of these terms and conditions:

(a)    we, together with our licensors, own and control all the copyright and other intellectual property rights in our website and the material on our website; and

(b)    all the copyright and other intellectual property rights in our website and the material on our website are reserved.

  1. Licence to use website

3.1    You may:

(a)    view pages from our website in a web browser;

(b)    download pages from our website for caching in a web browser;

(c)    print pages from our website;

(d)    [stream audio and video files from our website]; and

(e)    [use [our website services] by means of a web browser],

subject to the other provisions of these terms and conditions.

3.2    Except as expressly permitted by Section 3.1 or the other provisions of these terms and conditions, you must not download any material from our website or save any such material to your computer.

3.3    You may only use our website for [your own personal and business purposes], and you must not use our website for any other purposes.

3.4    Except as expressly permitted by these terms and conditions, you must not edit or otherwise modify any material on our website.

3.5    Unless you own or control the relevant rights in the material, you must not:

(a)    republish material from our website (including republication on another website);

(b)    sell, rent or sub-license material from our website;

(c)    show any material from our website in public;

(d)    exploit material from our website for a commercial purpose; or

(e)    redistribute material from our website.

3.6    Notwithstanding Section 3.5, you may redistribute [our newsletter] in [print and electronic form] to [any person].

3.7    We reserve the right to restrict access to areas of our website, or indeed our whole website, at our discretion; you must not circumvent or bypass, or attempt to circumvent or bypass, any access restriction measures on our website.

  1. Acceptable use

4.1    You must not:

(a)    use our website in any way or take any action that causes, or may cause, damage to the website or impairment of the performance, availability or accessibility of the website;

(b)    use our website in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

(c)    use our website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software;

(d)    [conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our website without our express written consent];

(e)    [access or otherwise interact with our website using any robot, spider or other automated means, except for the purpose of search engine indexing];

(f)    [violate the directives set out in the robots.txt file for our website]; or

(g)    [use data collected from our website for any direct marketing activity (including without limitation email marketing, SMS marketing, telemarketing and direct mailing)].

4.2    You must not use data collected from our website to contact individuals, companies or other persons or entities.

4.3    You must ensure that all the information you supply to us through our website, or in relation to our website, is [true, accurate, current, complete and non-misleading].

  1. Use on behalf of organisation

5.1    If you use our website or expressly agree to these terms and conditions in the course of a business or other organisational project, then by so doing you bind both:

(a)    yourself; and

(b)    the person, company or other legal entity that operates that business or organisational project,

to these terms and conditions, and in these circumstances references to “you” in these terms and conditions are to both the individual user and the relevant person, company or legal entity, [unless the context requires otherwise] OR [except that [specify exceptions]].

  1. Registration and accounts

6.1    To be eligible for an account on our website under this Section 6, you must [be resident or situated in the United Kingdom].

6.2    You may register for an account with our website by [completing and submitting the account registration form on our website, and clicking on the verification link in the email that the website will send to you].

6.3    You must not allow any other person to use your account to access the website.

6.4    You must notify us in writing immediately if you become aware of any unauthorised use of your account.

6.5    You must not use any other person’s account to access the website[, unless you have that person’s express permission to do so].

  1. User login details

7.1    If you register for an account with our website, [we will provide you with] OR [you will be asked to choose] [a user ID and password].

7.2    Your user ID must not be liable to mislead and must comply with the content rules set out in Section 13; you must not use your account or user ID for or in connection with the impersonation of any person.

7.3    You must keep your password confidential.

7.4    You must notify us in writing immediately if you become aware of any disclosure of your password.

7.5    You are responsible for any activity on our website arising out of any failure to keep your password confidential, and may be held liable for any losses arising out of such a failure.

  1. Cancellation and suspension of account

8.1    We may:

(a)    edit your account details;

(b)    temporarily suspend your account; and/or

(c)    cancel your account,

at any time in our sole discretion, providing that if we cancel any services you have paid for and you have not breached these terms and conditions, you will be entitled to a refund of any amounts paid to us in respect of those services that were to be provided by us to you after the date of such cancellation; we will give you [reasonable written] notice of any cancellation under this Section 8.1.

8.2    You may cancel your account on our website [using your account control panel on the website]. You will not be entitled to any refund if you cancel your account in accordance with this Section 8.2.

  1. Subscriptions

9.1    To become a subscriber to our website services, you must pay the applicable subscription fees during the account registration procedure. We will send you an acknowledgement of your order.

9.2    You will have the opportunity to identify and correct input errors prior to making your order by email.

9.3    For so long as your account and subscription remain active in accordance with these terms and conditions, you will benefit from the features specified on our website in relation to your subscription type.

9.4    We may from time to time vary the benefits associated with a subscription by giving you written notice of the variation, providing that, if in our reasonable opinion such a variation results in a substantial loss of value or functionality,] you shall have the right to cancel your subscription, and we will refund to you any amounts paid to us in respect of any period of subscription after the date of such cancellation.

9.5    At the end of any period of subscription for which you have paid, and subject to the other provisions of these terms and conditions, your subscription will be automatically renewed and you must pay to us the applicable subscription fees, unless you cancel the subscription using the cancellation facility on our website before the date of renewal.

  1. Fees

10.1  The fees in respect of our website services will be as set out on the website from time to time.

10.2  All amounts stated in these terms and conditions or on our website are stated inclusive of VAT.

10.3  You must pay to us the fees in respect of our website services in advance, in cleared funds, in accordance with any instructions on our website.

10.4  We may vary fees from time to time by posting new fees on our website, but this will not affect fees for services that have been previously paid.

10.5  If you dispute any payment made to us, you must contact us immediately and provide full details of your claim.

10.6  If you make an unjustified credit card, debit card or other charge-back then you will be liable to pay us, within [7 days] following the date of our written request:

(a)    an amount equal to the amount of the charge-back;

(b)    all third party expenses incurred by us in relation to the charge-back (including charges made by our or your bank or payment processor or card issuer);

(c)    all our reasonable costs, losses and expenses incurred in recovering the amounts referred to in this Section 10.6 (including without limitation legal fees and debt collection fees),

and for the avoidance of doubt, if you fail to recognise or fail to remember the source of an entry on your card statement or other financial statement, and make a charge-back as a result, this will constitute an unjustified charge-back for the purposes of this Section 10.6.

10.7  If you owe us any amount under or relating to these terms and conditions, we may suspend or withdraw the provision of services to you.

10.8  We may at any time set off any amount that you owe to us against any amount that we owe to you, by sending you written notice of the set-off.

  1. Distance contracts: cancellation right

11.1  This Section 11 applies if and only if you offer to contract with us, or contract with us, as a consumer – that is, as an individual acting wholly or mainly outside your trade, business, craft or profession.

11.2  You may withdraw an offer to enter into a contract with us through our website, or cancel a contract entered into with us through our website, at any time within the period:

(a)    beginning upon the submission of your offer; and

(b)    ending at the end of 14 days after the day on which the contract is entered into,

subject to Section 11.3. You do not have to give any reason for your withdrawal or cancellation.

11.3  You agree that we may begin the provision of services before the expiry of the period referred to in Section 11.2, and you acknowledge that, if we do begin the provision of services before the end of that period, then:

(a)    if the services are fully performed, you will lose the right to cancel referred to in Section 11.2;

(b)    if the services are partially performed at the time of cancellation, you must pay to us an amount proportional to the services supplied or we may deduct such amount from any refund due to you in accordance with this Section 11.

11.4  In order to withdraw an offer to contract or cancel a contract on the basis described in this Section 11, you must inform us of your decision to withdraw or cancel (as the case may be). You may inform us by means of any clear statement setting out the decision. In the case of cancellation, you may inform us using the cancellation form that we will make available to you. To meet the cancellation deadline, it is sufficient for you to send your communication concerning the exercise of the right to cancel before the cancellation period has expired.

11.5  If you withdraw an offer to contract, or cancel a contract, on the basis described in this Section 11, you will receive a full refund of any amount you paid to us in respect of the offer or contract, except as specified in this Section 11.

11.6  We will refund money using the same method used to make the payment, unless you have expressly agreed otherwise. In any case, you will not incur any fees as a result of the refund.

11.7  We will process the refund due to you as a result of a cancellation on the basis described in this Section 11 without undue delay and, in any case, within the period of 14 days after the day on which we are informed of the cancellation.

  1. Your content: licence

12.1  In these terms and conditions, “your content” means all works and materials (including without limitation text, graphics, images, audio material, video material, audio-visual material, scripts, software and files) that you submit to us or our website for storage or publication on, processing by, or transmission via, our website.

12.2  You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to use, reproduce, store, adapt, publish, translate and distribute your content in any existing or future media] OR [reproduce, store and publish your content on and in relation to this website and any successor website] OR [reproduce, store and, with your specific consent, publish your content on and in relation to this website].

12.3  You grant to us the right to sub-license the rights licensed under Section 12.2.

12.4  You grant to us the right to bring an action for infringement of the rights licensed under Section 12.2.

12.5  You hereby waive all your moral rights in your content to the maximum extent permitted by applicable law; and you warrant and represent that all other moral rights in your content have been waived to the maximum extent permitted by applicable law.

12.6  You may edit your content to the extent permitted using the editing functionality made available on our website.

12.7  Without prejudice to our other rights under these terms and conditions, if you breach any provision of these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may delete, unpublish or edit any or all of your content.

  1. Your content: rules

13.1  You warrant and represent that your content will comply with these terms and conditions.

13.2  Your content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

13.3  Your content, and the use of your content by us in accordance with these terms and conditions, must not:

(a)    be libellous or maliciously false;

(b)    be obscene or indecent;

(c)    infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)    infringe any right of confidence, right of privacy or right under data protection legislation;

(e)    constitute negligent advice or contain any negligent statement;

(f)    constitute an incitement to commit a crime[, instructions for the commission of a crime or the promotion of criminal activity];

(g)    be in contempt of any court, or in breach of any court order;

(h)    be in breach of racial or religious hatred or discrimination legislation;

(i)    be blasphemous;

(j)    be in breach of official secrets legislation;

(k)    be in breach of any contractual obligation owed to any person;

(l)    be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory; or

(m)    cause annoyance, inconvenience or needless anxiety to any person.

  1. Report abuse

14.1  If you learn of any unlawful material or activity on our website, or any material or activity that breaches these terms and conditions, please let us know.

14.2  You can let us know about any such material or activity [by email or using our abuse reporting form].

  1. Limited warranties

15.1  We do not warrant or represent:

(a)    the completeness or accuracy of the information published on our website;

(b)    that the material on the website is up to date; or

(c)    that the website or any service on the website will remain available.

15.2  We reserve the right to discontinue or alter any or all of our website services, and to stop publishing our website, at any time in our sole discretion without notice or explanation; and save to the extent expressly provided otherwise in these terms and conditions, you will not be entitled to any compensation or other payment upon the discontinuance or alteration of any website services, or if we stop publishing the website.

15.3  To the maximum extent permitted by applicable law and subject to Section 16.1, we exclude all representations and warranties relating to the subject matter of these terms and conditions, our website and the use of our website.

  1. Limitations and exclusions of liability

16.1  Nothing in these terms and conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law,

and, if you are a consumer, your statutory rights will not be excluded or limited by these terms and conditions, except to the extent permitted by law.

16.2  The limitations and exclusions of liability set out in this Section 16 and elsewhere in these terms and conditions:

(a)    are subject to Section 16.1; and

(b)    govern all liabilities arising under these terms and conditions or relating to the subject matter of these terms and conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these terms and conditions.

16.3  To the extent that our website and the information and services on our website are provided free of charge, we will not be liable for any loss or damage of any nature.

16.4  We will not be liable to you in respect of any losses arising out of any event or events beyond our reasonable control.

16.5  We will not be liable to you in respect of any business losses, including (without limitation) loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.

16.6  We will not be liable to you in respect of any loss or corruption of any data, database or software[, providing that if you contract with us under these terms and conditions as a consumer, this Section 16.6 shall not apply].

16.7  We will not be liable to you in respect of any special, indirect or consequential loss or damage[, providing that if you contract with us under these terms and conditions as a consumer, this Section 16.7 shall not apply].

16.8  You accept that we have an interest in limiting the personal liability of our officers and employees and, having regard to that interest, you acknowledge that we are a limited liability entity; you agree that you will not bring any claim personally against our officers or employees in respect of any losses you suffer in connection with the website or these terms and conditions (this will not, of course, limit or exclude the liability of the limited liability entity itself for the acts and omissions of our officers and employees).

16.9  Our aggregate liability to you in respect of any contract to provide services to you under these terms and conditions shall not exceed the greater of:

(a)    [amount]; and

(b)    [the total amount paid and payable to us under the contract].

  1. Indemnity

17.1  You hereby indemnify us, and undertake to keep us indemnified, against any and all losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) incurred or suffered by us and arising directly or indirectly out of [your use of our website or any breach by you of any provision of these terms and conditions].

  1. Breaches of these terms and conditions

18.1  Without prejudice to our other rights under these terms and conditions, if you breach these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may:

(a)    send you one or more formal warnings;

(b)    temporarily suspend your access to our website;

(c)    permanently prohibit you from accessing our website;

(d)   suspend or delete your account on our website

(e)    commence legal action against you, whether for breach of contract or otherwise

18.2  Where we suspend or prohibit or block your access to our website or a part of our website, you must not take any action to circumvent such suspension or prohibition or blocking[ (including without limitation [creating and/or using a different account])].

  1. Third party websites

19.1  Our website includes hyperlinks to other websites owned and operated by third parties; such hyperlinks are not recommendations.

19.2  We have no control over third party websites and their contents, and subject to Section 16.1 we accept no responsibility for them or for any loss or damage that may arise from your use of them.

  1. Trade marks

20.1  Melanie Knights Coaching, our logos and our other registered and unregistered trade marks are trade marks belonging to us; we give no permission for the use of these trade marks, and such use may constitute an infringement of our rights.

20.2  The third party registered and unregistered trade marks or service marks on our website are the property of their respective owners and, unless stated otherwise in these terms and conditions, we do not endorse and are not affiliated with any of the holders of any such rights and as such we cannot grant any licence to exercise such rights.

  1. Variation

21.1  We may revise these terms and conditions from time to time.

21.2  [The revised terms and conditions shall apply to the use of our website from the date of publication of the revised terms and conditions on the website, and you hereby waive any right you may otherwise have to be notified of, or to consent to, revisions of these terms and conditions.] OR [We will give you written notice of any revision of these terms and conditions, and the revised terms and conditions will apply to the use of our website from the date that we give you such notice; if you do not agree to the revised terms and conditions, you must stop using our website.]

21.3  If[ you are a consumer and] you have purchased any of our website services and there subsists a contract under these terms and conditions in respect of those website services, we will ask for your express agreement to any revision of that contract.[ We may make such revisions [only for the purposes of reflecting changes to applicable law, the technology we use to provide the services and/or our internal business processes].]  We will give you [at least 30 days’ prior written] notice of any revision. If you do not give your express agreement to the revised terms and conditions within that period, [the contract between us shall be automatically terminated and you will be entitled to a refund of any amounts paid to us in respect of website services that were to be provided by us to you after the date of such termination].

  1. Assignment

22.1  You hereby agree that we may assign, transfer, sub-contract or otherwise deal with our rights and/or obligations under these terms and conditions[ – providing, if you are a consumer, that such action does not serve to reduce the guarantees benefiting you under these terms and conditions].

22.2  You may not without our prior written consent assign, transfer, sub-contract or otherwise deal with any of your rights and/or obligations under these terms and conditions.

  1. Severability

23.1  If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

23.2  If any unlawful and/or unenforceable provision of these terms and conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

  1. Third party rights

24.1  A contract under these terms and conditions is for our benefit and your benefit, and is not intended to benefit or be enforceable by any third party.

24.2  The exercise of the parties’ rights under a contract under these terms and conditions is not subject to the consent of any third party.

  1. Entire agreement

25.1  Subject to Section 16.1, these terms and conditions[, together with [our privacy and cookies policy],] shall constitute the entire agreement between you and us in relation to your use of our website and shall supersede all previous agreements between you and us in relation to your use of our website.

  1. Law and jurisdiction

26.1  These terms and conditions shall be governed by and construed in accordance with [English law].

26.2  Any disputes relating to these terms and conditions shall be subject to the [exclusive] OR [non-exclusive] jurisdiction of the courts of [England].

  1. Statutory and regulatory disclosures

27.1  We will not file a copy of these terms and conditions specifically in relation to each user or customer and, if we update these terms and conditions, the version to which you originally agreed will no longer be available on our website. We recommend that you consider saving a copy of these terms and conditions for future reference.

27.2  These terms and conditions are available in [the English language only].

27.3  The website of the European Union’s online dispute resolution platform is available at https://webgate.ec.europa.eu/odr/main. The online dispute resolution platform may be used for resolving disputes.

  1. Our details

28.1  This website is owned and operated by Melanie Knights.

28.2  You can contact us:

(a)   using our website contact form;

(b)   by email, using hello@melanieknights.com 

 

Subscription website terms and conditions: drafting notes

A common model for web-based businesses is the provision of access to information, resources and tools on a subscription basis. A user who purchases a subscription will gain access to the relevant information etc for a defined period. This document has been designed for websites providing services on this basis. For example, it may be suitable for use in relation to a website offering access to news or hosted software tools on the basis of periodic payments.

Section 1.5

Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) concerning consent to the use of cookies. Guidance concerning methods of obtaining such consent is included on the Information Commissioner’s website (http://www.ico.gov.uk). Cookie Policy.

Section 3.6

  • You may not under any circumstances redistribute any content within your membership including but not limited to workbooks, emails, video, audio and comments made from other members. Failure to follow this will result in cancellation of your membership with zero refunds provided.

Section 11: Distance contracts: cancellation right

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply special rules to certain distance contracts between traders and consumers (i.e. B2C) for the supply of services entered into via a website, as well as certain other contracts (not discussed here). The Regulations, effective on 13 June 2014, replace the Consumer Protection (Distance Selling) Regulations 2000. See: http://www.legislation.gov.uk/uksi/2013/3134/contents/made Unfortunately, the rules are too complex to describe in detail here, and you should read the Regulations or at least a more detailed summary of them. A handful of the key points have been set out below. First, traders must make certain pre-contract disclosures. The information traders need to disclose is set out in Schedule 2 to the Regulations, and includes information about the cancellation rights under the Regulations. Some of the information may be contained in terms and conditions or other standard documents, whilst some will usually be customer-specific.  Second, certain of the Schedule 2 information (mostly concerned with the characteristics of the services, pricing, payments and contract duration – see Regulation 14(2)) must be provided directly before the order is placed. This could be on a page of a checkout process where the consumer is asked to check the details of the order before paying. Third, when placing an order the consumer should explicitly acknowledge the obligation to pay. If the order is made by pressing a button, the button text should be “Order with obligation to pay” or something equivalent. Fourth, the trader must send to the consumer confirmation of the contract on a “durable medium”. Typically, this will be a confirmation email. The confirmation should repeat any Schedule 2 information that was not previously given on a durable medium. Fifth, the trader should make available to consumers a partially filled-in copy of the model cancellation form set out in Schedule 3(B).  The trader may also wish to make available a filled-in copy of the model instructions for cancellation set out in Schedule 3(A) – but one of the purposes of the distance selling provisions in this document is to replace those model instructions. If both are used, ensure they are consistent. Sixth, the trader should have in place appropriate procedures to comply with cancellation requests. In summary, contracts to purchase services may be cancelled at any time within the period of 14 days following the coming into force of the contract (subject to the early provision rules, described below).  Seventh, in the case of contracts for services which will or may be provided before the end of the cancellation period, and on the assumption that such contracts should be not be cancellable without cost to the consumer, the consumer should be required to make an “express request” for service provision before the end of the cancellation period, and must “acknowledge” that the right to cancel will be lost once the contract has been fully performed. Certain contracts for services are not covered by the Regulations or are not cancellable under the Regulations. Included in these categories are contracts for: (i) gambling; (ii) certain financial services; (iii) the creation of immovable property or rights in immovable property; (iv) rental of accommodation for residential purposes; (v) the construction and conversion of buildings; (vi) the supply of food etc by a regular roundsman; (vii) package holidays; (viii) timeshares; (ix) passenger transport services, (x) services the price of which fluctuates with financial markets (with exceptions), and (xi) urgent repairs or maintenance requested by the consumer (again, with exceptions). Contracts for the supply of accommodation, transport of goods, vehicle rental services and catering services relating to leisure activities are not covered if they provide for specific dates or periods of performance. See Regulations 6, 27 and 28 for full details. There are other exceptions and special rules that are not covered in this note, so do read the Regulations or some more detailed guidance. See, for instance, the Distance Selling Hub on the Trading Standards website: http://dshub.tradingstandards.gov.uk/

Section 11.3

The consumer should be asked to give “express consent” to the provision of services before the end of the cancellation period, and must acknowledge the consequent loss of the cancellation right (eg by ticking a checkbox, during checkout, next to a statement clearly specifying the consent and acknowledgement). See Regulation 36.

Section 11.4

The trader must make available to the consumer a Schedule 3(B) cancellation form. In the Regulations, “something is made available to a consumer only if the consumer can reasonably be expected to know how to access it” (Regulation 8). If the trader gives the consumer the option of cancelling by means of a web form and the consumer uses that web form to cancel, the trader must acknowledge the cancellation “on a durable medium without delay”. See Regulation 31.

Section 16: Limitations and exclusions of liability

Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable. Exclusions and limitations of liability in UK B2B contracts are primarily regulated by the Unfair Contract Terms Act 1977 (“UCTA”), while exclusions of liability in UK B2C contracts are primarily regulated by the Consumer Rights Act 2015 (“CRA”). Contracts regulated by UCTA cannot exclude or restrict a party’s liability for death or personal injury resulting from negligence (Section 2(1), UCTA). Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967). In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other’s written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA). UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes. Consumer contracts regulated by the CRA cannot exclude or restrict liability for death or personal injury resulting from negligence (Section 65(1), CRA). Further, any “unfair term” in such a contract will not be binding on the consumer (Section 62(1), CRA). A contractual term is unfair “if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer” (Section 62(3), CRA). Sections 47 and 57 of the CRA prevent a trader using exclusion clauses to abridge the rights of a consumer in relation to digital content and services respectively. Section 47 of the CRA provides that a term of a contract to supply digital content is not binding on the consumer if it excludes or restricts the trader’s liability under the provisions of the CRA relating to: (a) digital content being of satisfactory quality; (b) digital content being fit for a particular purpose; (c) digital content being as described; (d) pre-contract information; or (e) the trader’s right to supply the digital content. Section 57 of the CRA provides (inter alia) that a term in a services contract will not bind consumers if it excludes any liability of the trader to provide the services with reasonable care and skill. A “grey list” of provisions that may be regarded as unfair is set out in Part 1 of Schedule 2 to the CRA. Some of these have implications for the drafting of limitations and exclusions of liability. For example, they include:  “[a] term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader.” “Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice” (Section 65(2), CRA). The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should usually be drafted as an independent term, and be numbered separately from the other provisions. These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.

Section 16.1

Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.

Section 16.3

Optional element. Do you want to attempt to exclude all liability for free services and information?

This sort of exclusion is quite common, but unlikely to be enforceable in court.

Section 16.5

Optional element.

Section 16.6

Optional element.

  • Should this exclusion of liability apply only to non-consumers?

Section 16.7

Optional element.

“Consequential loss” has a special meaning in English law: it means any loss that, whilst not arising naturally from the breach, was specifically in the contemplation of the parties when the contract was made.

  • Should this exclusion of liability apply only to non-consumers?

Section 16.8

Optional element. If the website operator is a limited liability entity (eg a limited company), do you want to expressly exclude liability on the part of officers and employees?

Section 16.9

Optional element. Do you want to include a liability cap in this document?

Liability caps may be unenforceable in practice.

  • Do you want to include a liability cap in this document?
  • What monetary amount should be used in the liability cap?
  • What floating amount should be used in the liability cap?

Section 17: Indemnity

Optional element.

Section 18: Breaches of these terms and conditions

Section 18.1

  • Will account suspension or deletion be a possibility here?

Section 18.2

Optional element.

  • Do you wish to specify types of action that are prohibited here?
  • Detail the types of action which are prohibited by this provision.

Section 19: Third party websites

Optional element.

Section 20: Trade marks

Do any trade marks (registered or unregistered, yours or someone else’s) appear on your website?

Trade marks may be registered or unregistered. It is a criminal offence under Section 94 of the Trade Marks Act 1994 to falsely represent that a trade mark is registered. Accordingly, you must not use the (R) symbol in relation to unregistered trade marks.

Section 20.1

It is customary in legal documents to identify specific trade marks using capital letters (eg TRADE MARK) and, in the case of registered marks, registration particulars (eg UK trade mark registration number 000001 for TRADE MARK).

  • Please identify your trade marks, by reference to registration particulars in the case of registered trade marks.

Section 20.2

Optional element. Will or might any third party trade marks be reproduced on the website?

Section 21: Variation

Changes to legal documents published on a website will not generally be retrospectively effective, and variations without notice to and/or consent from relevant users may be ineffective.

Section 21.2

  • Will website users be notified of changes to the document?

Section 21.3

The Consumer Rights Act 2015 (“CRA”) provides that “[a] term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract” may be an unfair term, and therefore unenforceable (see Section 63(1) and Part 1 of Schedule 2, CRA). However, that paragraph does not apply to: “a term under which a trader reserves the right to alter unilaterally the conditions of a contract of indeterminate duration if – (a) the trader is required to inform the consumer with reasonable notice, and (b) the consumer is free to dissolve the contract” (see Section 63(2) and Part 2 of Schedule 2, CRA).

  • Do you wish to specify that this provision will apply only to consumers?
  • Should the purposes of possible document revisions be specified here?
  • What sort of notice will be given?
  • What happens if no agreement to a proposed variation is forthcoming?
  • What purposes?

Section 22: Assignment

Section 22.1

Part 1 of Schedule 2 to the Consumer Rights Act 2015 contains an indicative and non-exhaustive list of terms which may be regarded as unfair. Included in this list are terms having “the object or effect of allowing the trader to transfer the trader’s rights and obligations under the contract, where this may reduce the guarantees for the consumer, without the consumer’s agreement”.

  • Do you want to explicitly state that consumers will not lose any “guarantees” as a result of an assignment?

Section 24: Third party rights

Optional element.

This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.

Section 25: Entire agreement

Section 25.1

  • What other documents govern the use of the website?

Section 26: Law and jurisdiction

The questions of which law governs a document and where disputes relating to the document may be litigated are two distinct questions.

Section 26.1

This document has been drafted to comply with English law, and the governing law provision should not be changed without obtaining expert advice from a lawyer qualified in the appropriate jurisdiction. In some circumstances the courts will apply provisions of their local law, such as local competition law or consumer protection law, irrespective of a choice of law clause.

  • Which law should govern the document?

Section 26.2

In some circumstances your jurisdiction clause may be overridden by the courts.

  • Should the jurisdiction granted be exclusive or non-exclusive? Choose “non-exclusive” jurisdiction if you may want to enforce the terms and conditions against users outside England and Wales. Otherwise, choose “exclusive jurisdiction”.
  • The courts of which country or jurisdiction should adjudicate disputes under the document?

Section 27: Statutory and regulatory disclosures

Optional element.

This provision includes certain disclosures that may aid compliance with certain statutes and regulations, including the Electronic Commerce (EC Directive) Regulations 2002.

Section 27.1

Optional element.

Section 27.2

Optional element.

This is intended to meet the requirements of Regulation 9(1)(d) of the Electronic Commerce (EC Directive) Regulations 2002.

  • What language or languages will the document be available in?

Section 27.3

Optional element. Is the website operator registered in a trade or similar register that is available to the public?

The Electronic Commerce (EC Directive) Regulations 2002 provide that if you are “registered in a trade or similar register available to the public”, you must provide “details of the register in which the service provider is entered and his registration number, or equivalent means of identification in that register”.

  • What is the name of the trade register?
  • At what URL can the trade register be found?
  • What is the website operator’s registration number?

Section 27.4

Optional element. Is the website operator subject to an authorisation scheme (eg under financial services legislation)?

The Electronic Commerce (EC Directive) Regulations 2002 provide that “where the provision of the service is subject to an authorisation scheme” you must provide “the particulars of the relevant supervisory authority”.

  • What is the name of the authorisation scheme to which the website operator is subject?
  • What authority supervises the authorisation scheme?

Section 27.5

Optional element. Is the service provider a member of a regulated profession (eg solicitors)?

The Electronic Commerce (EC Directive) Regulations 2002 provide that if “the service provider exercises a regulated profession”, it must provide “(i) the details of any professional body or similar institution with which the service provider is registered; (ii) his professional title and the member State where that title has been granted; (iii) a reference to the professional rules applicable to the service provider in the member State of establishment and the means to access them”.

  • What is the website operator’s professional title?
  • Which professional body regulates the website operator?
  • In which jurisdiction was the professional title granted?
  • What is the name of the document containing the rules governing the profession?
  • At what URL can the rules be found?

Section 27.6

Optional element. Does the website operator subscribe to any codes of conduct?

The Electronic Commerce (EC Directive) Regulations 2002 provide that “a service provider shall indicate which relevant codes of conduct he subscribes to and give information on how those codes can be consulted electronically”.

  • Identify the codes of conduct in question.
  • Where can the codes be viewed?

Section 27.7

Optional element. Is the website operator registered for VAT?

  • What is the website operator’s VAT number?

Section 27.8

Optional element.

Article 14(1) of Regulation (EU) No 524/2013 provides: “Traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, shall provide on their websites an electronic link to the ODR platform. That link shall be easily accessible for consumers. Traders established within the Union engaging in online sales or service contracts shall also state their e-mail addresses.”Also note Article 14(2), which provides: “Traders established within the Union engaging in online sales or service contracts, which are committed or obliged to use one or more ADR entities to resolve disputes with consumers, shall inform consumers about the existence of the ODR platform and the possibility of using the ODR platform for resolving their disputes. They shall provide an electronic link to the ODR platform on their websites and, if the offer is made by e-mail, in that e-mail. The information shall also be provided, where applicable, in the general terms and conditions applicable to online sales and service contracts.”Some of the same ground is covered in the equivalent UK rules, which are contained in Regulations 19 and 19A of the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (as amended by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015).Regulation 19A(1) provides: “Where under an enactment, rules of a trade association, or term of a contract, an online trader is obliged to use an alternative dispute resolution procedure provided by anADR entity or EU listed body, the trader must – (a) provide a link to the ODR platform in any offer made to a consumer by email; and (b) inform consumers of – (i) the existence of the ODR platform; and (ii) the possibility of using the ODR platform for resolving disputes.Regulation 19A(2) provides: “The information in (1)(b) must also be included in the general terms and conditions of online sales contracts and online service contracts of the trader, where such general terms and conditions exist.”Regulation 19A(3) provides: “An online trader must on its website – (i) provide a link to the ODR platform; and (ii) state the online trader’s email address.”Regulation 19A(4) provides: “An online marketplace must provide a link to the ODR platform on its website.”

  • Include this text if “under an enactment, rules of a trade association, or term of a contract, [the] online trader is obliged to use an alternative dispute resolution procedure provided by an ADR entity or EU listed body”.

Section 27.9

Optional element.

Regulations 19(1) of the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (as amended by The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015) provides: “Where, under an enactment, rules of a trade association, or term of a contract, a trader is obliged to use an alternative dispute resolution procedure provided by an ADR entity or EU listed body the trader must provide the name and website address of the ADR entity or EU listed body – (a) on the trader’s website, if the trader has a website; and (b) in the general terms and conditions of sales contracts or service contracts of the trader, where such general terms and conditions exist.”

Section 28: Our details

Optional element.

UK companies must provide their corporate names, their registration numbers, their place of registration and their registered office address on their websites (although not necessarily in this document). Sole traders and partnerships that carry on a business in the UK under a “business name” (i.e. a name which is not the name of the trader/names of the partners or certain other specified classes of name) must also make certain website disclosures: (i) in the case of a sole trader, the individual’s name; (ii) in the case of a partnership, the name of each member of the partnership; and (iii) in either case, in relation to each person named, an address in the UK at which service of any document relating in any way to the business will be effective. All websites covered by the Electronic Commerce (EC Directive) Regulations 2002 must provide a geographic address (not a PO Box number) and an email address. All website operators covered by the Provision of Services Regulations 2009 must also provide a telephone number.

Section 28.1

  • What is the name of the company, partnership, individual or other legal person or entity that owns and operates the website?

Section 28.2

Optional element. Is the relevant person a company?

  • In what jurisdiction is the company registered?
  • What is the company’s registration number or equivalent?
  • Where is the company’s registered address?

Section 28.3

Optional element.

  • Where is the relevant person’s head office or principal place of business?

Section 28.4

Optional element.

  • By what means may the relevant person be contacted?
  • Where is the relevant person’s postal address published?
  • Either specify a telephone number or give details of where the relevant number may be found.
  • Either specify an email address or give details of where the relevant email address may be found.