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A Checklist of Website Legal Requirements, Part 2

03 July 2014

Mason Hayes & Curran Technology Law Blog

In this three-part series of posts, we bring you a checklist of questions to help you tackle the challenge of website legal compliance. Part 1 and Part 3 are also available.

Are your terms and conditions of sale binding?

It is imperative that online purchasers are bound by the terms and conditions of sale or engagement.  Simply making terms and conditions available by hyperlink may not be sufficient to incorporate the terms and conditions of sale into the purchase arrangements.  

It is generally recommended that purchasers should be required to scroll through the terms and conditions of sale and click an “I Accept” icon before proceeding to checkout and purchase.  This mechanism is intended to ensure that the terms and conditions of sale are fully incorporated into the agreement with purchasers. Under Irish contract law all the terms and conditions and, in particular, any exclusions of liability must be brought to the attention of purchasers.

Alternatively, the terms and conditions of sale may be included in a hyperlink to which the purchaser is referred along with an icon stating that the purchaser has read and understood them, and which icon purchasers must click before purchase.  While browse-wrap agreements have been endorsed in the Irish courts to make Terms of Use of a website enforceable against commercial defendants, the hyperlinking approach may not be as effective as the mechanism described above.

Are your terms and conditions unfair?

If you sell goods or services to a consumer, you should consider whether your terms and conditions are “unfair.” The Unfair Terms in Consumer Contracts Regulations 1995 (as amended) provide that unfair terms will not be binding on a consumer.

Do you need website terms of use?