About this document
  
Drafting assumptions
 
This standard document is drafted on the following assumptions:
 
It is designed for publication on a website.
It contains provisions dealing with access to, and use of, the website. These include information about the website owner, rights to modify or withdraw the website, disclaimers for material published on it or linked to from it, rules about how such materials may be used and about unacceptable user behaviour such as hacking, introducing viruses and uploading illegal or defamatory content.
It is intended for use in conjunction with the following standard documents:
Website privacy policy (GDPR and DPA 2018) (UK).
Website acceptable use policy.
Standard document, Cookie policy (PECR, GDPR and DPA 2018) (UK)
Online consumer goods, services and digital content terms and conditions, if selling goods via the website.
It is designed for use for business users as well as consumers.
It is drafted generically so that it can be adapted for use on different websites and different sectors. In its current form, however, it is not drafted for any specific sector or industry, in particular financial services or other regulated services.
The site is made available free of charge.
  
Drafting issues
 
 
Drafting for children
 
The Information Commissioner’s Office (ICO) has published an Age appropriate design code of practice for online services aimed at online services likely to be accessed by children. It sets out 15 standards that organisations should meet when designing, developing or providing online services likely to be accessed by children. Among other things, the code requires policies to be concise, prominent and written in clear language suited to the age of the child. That is likely to apply to website terms and conditions. The code came into force on 2 September 2020 and service providers have 12 months to implement it. For more information, see Practice note, Social media compliance: ICO age appropriate design code.
 
Drafting to counter online harms
 
In April 2019, the UK government published an Online Harms White Paper setting out proposals for a package of online safety measures. The outcome is likely to have some implications for the way in which social media organisations draft their terms and conditions.
 
The proposed regulatory framework is intended to apply to companies that allow users to share or discover user-generated content or interact with each other online. This will include including social media platforms, file hosting sites, public discussion forums, messaging services and search engines. Companies in these categories will have to comply with a new statutory duty of care to counter illegal content and activity. A regulator will set out how to do this in codes of practice.
 
All companies in scope of the regulatory framework will need to be able to show that they are fulfilling their duty of care. Relevant terms and conditions will be required to be sufficiently clear and accessible, including to children and other vulnerable users. A regulator will assess how effectively these terms are enforced as part of any regulatory action.
 
For more information on the progress of government’s work in this area, see Practice note, Social media compliance: UK online harms white paper.
 
Video-sharing platforms
 
A service providing a video-sharing platform as defined in section 368S of the Communications Act 2003 (CA 2003) will be subject to additional requirements as to what they must include in their terms and conditions. For details, see Practice note, Video-sharing platforms: Content uploaded on VSP service.
  
Legal issues
 
 
Contract or notice?
 
Ideally, the website terms and conditions should be displayed, or be accessible to users by means of a prominent hyperlink, on all pages of the site.
 
The website operator may choose to require users to click on an acceptance button before they are permitted to view or otherwise use the site (click-wrap) but is more likely to opt for the terms simply to be clearly available to read (browse-wrap).
 
If the terms are browse-wrap, it is not clear that a contract will be formed because of the absence of acceptance (see Practice note, Consumer Rights Act 2015: click-wrap, browse-wrap and shrink-wrap agreements: general principles: Are End User Licence Agreements contracts?).
 
Note also the European Commission guidance on the Consumer Rights Directive (2011/83/EU), which states that:
 
”In itself [without the express conclusion of a contract], access to a website or a download from a website should not be considered a “contract” for the purposes of the Directive.”
(European Commission: Guidance document concerning the Consumer Rights Directive.)
 
(The Consumer Rights Directive was implemented in the UK. From 1 January 2021, the implementing legislation is retained EU law, so this guidance continues to be relevant in the UK.)
 
Where no contract has been formed the terms will be treated as a notice to users.
 
 
How effective is a notice?
From an intellectual property perspective, a non-contractual notice can grant the user rights to use website materials. However, see the comments in Drafting note, How you may use material on our site on the limited effectiveness of restrictions on use.
 
A non-contractual notice can also affect a user’s rights as a disclaimer. For example:
 
It might discharge a duty of care to the consumer, by giving the consumer enough warning of a danger. Website terms that warn users that material may not be accurate or up to date take this route.
It might negate a duty of care that could otherwise arise, by spelling out the limits of the responsibility or functions undertaken by the notice-giver. Website terms that state that information should not be relied on and that professional advice should be taken follow this approach. For more information, see Practice note, Excluding or limiting liability for negligence: Exclusion by disclaimer.
It might negate an implied representation by the notice-giver, by spelling out the limited scope of a document or disclosure. Again, terms that provide that information and that it should not be relied on may operate in this way. For more information, see Practice note, Misrepresentation: Non-reliance statements.
However, website terms that do not form a contract cannot bind the user contractually. For example, a term excluding a user’s rights to sue for negligence or defamation would be ineffective.
 
Both disclaimers in terms that form a notice and limitations of liability in any terms that form a contract will be subject to controls (discussed below), which limit a website operator’s ability to use them. The effect of including unfair terms is discussed below in Consequences of non-compliance with consumer and business legislation.
 
Business or consumer user?
 
A trader’s dealings with consumers are more strictly controlled than their dealings with business customers. In particular, a far wider range of terms are potentially unfair in consumer contracts and notices than is the case for business-to-business contracts and notices. Traders whose customers include businesses and consumers have a choice. They can either:
 
Apply different terms and conditions to consumers and to business customers (either combined in the same document or in two separate documents).
Give the more generous consumer protection to all customers.
In these terms, consumer and business users are only treated differently in the clause seeking to limit liability (Our responsibility for loss or damage suffered by you) and in the clause specifying law and jurisdiction (Which country’s laws apply to any disputes??).
 
Consumer controls applicable to all terms: whether or not they are contracts
 
 
Unfair terms
If these terms are used in a business to consumer context, their provisions will be subject to the general fairness test for all contract terms with consumers set out in section 62 of the Consumer Rights Act 2015 (CRA). These controls apply equally to non-contractual terms (that is, notices). For more information, see Practice notes, Consumer contracts: unfair terms and transparency and Unfair notices to consumers: Fairness test.
 
The CRA “grey-lists” a number of provisions as potentially unfair. Some of the terms in this document are arguably grey-listed including:
 
The right to unilaterally change the terms and the content at any time without notice.
The disclaimers for information published on the site.
The wide licence granted to the website owner for content uploaded or posted to the site.
However, grey-listed terms are only potentially unfair. A term is actually unfair if “contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer” (regulation 5, Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083)). Guidance from the Competition and Markets Authority on unfair contract terms comments that:
 
”A term is considered most likely to cause an unfair imbalance if it alters the balance in rights and obligations that the law would have struck if left to itself”.
(CMA: Unfair contract terms: CMA37 (CMA guidance).)
 
Whether a term is fair is to be determined both by:
 
Taking into account the nature of the subject matter of the contract.
Reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
(Section 62(5), CRA).
 
In a website context, the following issues may be relevant:
 
The status of the website operator. Are consumers likely to treat the information provided as authoritative?
The importance of the information contained on the website. Are consumers likely to make significant decisions based on the information the website provides?
Does the website provide a service or information that consumers will use regularly and rely on? Will it be difficult for users to switch to another website provider if the website is changed or suspended?
The CMA guidance states that a reduction in the price for a service will not necessarily remove or reduce the effect of a detrimental imbalance in the contract (CMA guidance). Presumably, offering a service free of charge will similarly not ensure that terms are fair. One rationale for this approach may be that the trader will generally obtain a commercial benefit from providing the website, for example, promotion of its products or advertising revenue.
 
As yet, there is little judicial guidance on whether terms seeking to disclaim or limit liability for damage resulting from use of a free website are “fair” and the use of such terms remains widespread. However:
 
Broad exclusion clauses (for example, that used by Facebook in 2012) have attracted criticism (see Appendix C to the Law Commissions’ report on unfair terms in consumer contracts).
The use of exclusion and limitation clauses that mislead consumers about their rights (and so discourage them from enforcing such rights) can be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) (regulation 5), for which the CMA and other bodies can take enforcement action, including criminal proceedings.
The approach taken in these terms is as follows:
 
Disclaimers are used to try to prevent liability arising (see for example, Drafting note, Do not rely on information on this site). Where appropriate, attempts have been made to make these disclaimers reasonable, as explained in the associated drafting notes.
As against consumers, there is no express attempt to exclude or limit any liability that might arise, despite the use of the disclaimers. The same approach is taken in Standard document, Online consumer goods, services and digital content terms and conditions. For more information, see Drafting note, Our responsibility for loss or damage suffered by you.
For more information, see Practice note, Consumer contracts: unfair terms and transparency.
 
Transparency
The transparency requirement under the CRA applies whether the rules are a contract or simply a notice. Broadly speaking, this means that terms must be expressed in plain and intelligible language. Making terms transparent and easy to understand also increases the chances of their being found to be fair. For more information, see Practice note, Consumer contracts: unfair terms and transparency.
 
Consumer controls only applicable to terms that are contracts
 
If these terms form a contract with a consumer (see Drafting note, Contract or notice? above), certain terms as to the quality of the website may be implied by the CRA and certain other rules about pre-contract information and helplines may apply under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) (CCRs), which implement the Consumer Rights Directive. The CCRs will continue in force after the end of the UK-EU transition period as retained EU law.
 
 
Services or digital content
Whether terms are implied into consumer contracts and what those terms are depends on whether the website is treated as a supply of digital content or of services. Insofar as a contract simply governs a user’s browsing of a website, it is likely that it is a contract for services (see Practice note, Consumer contracts: which rules apply?).
 
However, insofar as the terms permit the user to download digital content, the contract will be for the supply of that digital content.
 
Implied terms under the CRA
In relation to services, the key terms implied by the CRA are that the service must be provided with reasonable skill and care and be in accordance with any information provided pre-contract that the consumer relied on (see Practice note, Consumer contracts: supplying services: Consumer’s rights in respect of services). There are statutory remedies that will apply in the event of any breach of the implied terms (see Practice note, Consumer contracts: supplying services: Consumer remedies: overview).
 
Insofar as the terms are for the supply of digital content, implied terms are not relevant because no price is being paid. However, the CRA does provide a remedy where damage is caused by digital content, even where no price is paid (see Practice note, Supply of digital content to consumers: changes made by the Consumer Rights Act 2015: Consumer remedies for damage caused by digital content - even where it is provided for free).
 
Consumer Contracts Regulations 2013
The CCRs implemented the Consumer Rights Directive. As already mentioned, from 1 January 2021, they remain in force as retained EU law. They:
 
Require traders to give consumers pre-contract information, obtain the consumer’s express consent to additional payments, and not use premium rate helplines. Arguably, these rules apply to all consumer contracts (see Practice note, Consumer contracts: common terms and conditions).
Give a cooling-off period to consumers who are purchasing at a distance or off-premises. If the website is just treated as the provision of services, these rules do not apply because the cooling-off period only applies to services provided for a monetary price. However, there is a cooling-off period for digital content (for example, downloads) provided for non-monetary consideration (for example, an agreement to be bound by restrictions on use or the provision of personal data). In practice, this cooling-off period would seem to have limited scope in relation to a free download because on cancellation the trader’s main obligation is to refund money paid (there is no obligation to return non-monetary consideration).
For an overview of all of the rules applicable to online contracts under the CCRs, see Practice note, Consumer contracts: online selling.
 
Business controls applicable to all terms: whether or not they are contracts
 
A business cannot limit or exclude its liability for death or personal injury and can only restrict its liability for other loss or damage caused by negligence insofar as is reasonable (Unfair Contract Terms Act 1977). These controls apply whether the terms are contained in a contract or a notice (see Drafting note, Contract or notice? above).
 
Business controls only applicable to terms that are contracts
 
In a business-to-business scenario, the provision of access to a website would be a supply of services, and it is likely that supplying a download would also be a supply of services. English law only recognises “digital content” as a category distinct from goods and services in a consumer context.
 
If the terms do form a contract (see Drafting note, Contract or notice? above), legislation will imply terms that those services will be provided with reasonable skill and care and, if the contract is silent, within a reasonable time. The service provider may only limit its liability for breach of these implied terms to the extent that it is reasonable to do so (see Practice note, Statutory and common law controls on limitation clauses in B2B contracts: Statutory controls on limitation clauses). In addition, there is a large body of common law relevant to the formation and performance of such contracts. For more information, see Practice notes, Drafting standard terms and conditions for the supply of services, Issues in IT contracts litigation: Are these contractual restrictions enforceable? and Excluding or limiting liability for negligence.
 
Information requirements
 
Legislation imposes information requirements on website operators, whether they are dealing with consumers or businesses. The legislation includes:
 
Regulation 6(1) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (E-Commerce Regulations).
Provision of Services Regulations 2009 (SI 2009/2999).
Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 (SI 2015/17).
The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 (Companies Regulations), which amend section 188 of the Insolvency Act 1986.
For more information, see Practice note, Information provision obligations on UK website operators.
 
Consequences of non-compliance with consumer and business legislation
 
 
Breach of laws protecting consumers
Attempts by the website owner to enforce non-compliant provisions will be ineffective.
 
Attempts by the website owner to exclude remedies provided for by law will not succeed.
 
The inclusion of provisions that mislead consumers about their rights may attract enforcement action, by the CMA or other consumer protection bodies, such as Trading Standards.
 
Similarly, enforcement bodies can take action for breach of the information provision requirements under the CCRs, the E-Commerce Regulations and the Provision of Services Regulations.
 
Any public enforcement action is likely to attract bad publicity for traders.
 
Breach of laws protecting business customers
Insofar as a contract unreasonably seeks to exclude a website owner’s liability to a business customer, it will be ineffective.
 
It is up to businesses to take action directly against website providers for damage caused by failure to provide information required under the E-Commerce Regulations and the Provision of Services Regulations.
 
Failure to comply with the Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 is an offence punishable by a fine.
 
Including details of ADR provider
 
In some circumstances, a trader will be required to include information about its ADR entity in its general terms and conditions of sales contracts or service contracts. In our view, there is no requirement to provide this information in terms and conditions for website use, as these are normally distinct from a trader’s terms and conditions of sale or supply. For more information on this issue, see Ask, Do the Consumer ADR Regulations require traders to mention ADR options in website terms of use?.




PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE  
WHAT’S IN THESE TERMS?  
 
 
What’s in these terms?
 
The Department for Business Innovation and Skills (BIS) has suggested that using an index makes the terms more easily navigable and so more transparent for users (see BIS: Terms and conditions and consumer fining powers: BIS call for evidence, 1 March 2016).




These terms tell you the rules for using our website [DOMAIN ADDRESS] (our site).
 
Click on the links below to go straight to more information on each area:
 
Who we are and how to contact us [INSERT AS LINK].
By using our site you accept these terms [INSERT AS LINK].
There are other terms that may apply to you [INSERT AS LINK].
We may make changes to these terms [INSERT AS LINK].
We may make changes to our site [INSERT AS LINK].
We may suspend or withdraw our site [INSERT AS LINK].
We may transfer this agreement to someone else [INSERT AS LINK].
Our site is only for users in [England OR the UK] [INSERT AS LINK].
You must keep your account details safe [INSERT AS LINK].
How you may use material on our site [INSERT AS LINK].
Do not rely on information on our site [INSERT AS LINK].
We are not responsible for websites we link to [INSERT AS LINK].
User-generated content is not approved by us [INSERT AS LINK].
How to complain about content uploaded by other users [INSERT AS LINK].
Our responsibility for loss or damage suffered by you [INSERT AS LINK].
Exclusion of liability for digital content [INSERT AS LINK].
How we may use your personal information [INSERT AS LINK].
Uploading content to our site [INSERT AS LINK].
Rights you are giving us to use material you upload [INSERT AS LINK].
We are not responsible for viruses and you must not introduce them [INSERT AS LINK].
Rules about linking to our site [INSERT AS LINK].
Which country’s laws apply to any disputes? [INSERT AS LINK]
Our trade marks are registered [INSERT AS LINK].
WHO WE ARE AND HOW TO CONTACT US  
 
 
Who we are and how to contact us
 
This term contains part of the information about the website owner required under the legislation discussed in Drafting note, Information requirements.




[DOMAIN ADDRESS] is a site operated by [NAME OF COMPANY] (”We”). We are registered in England and Wales under company number [COMPANY NUMBER] and have our registered office at [COMPANY ADDRESS]. Our main trading address is [TRADING ADDRESS]. Our VAT number is [VAT NUMBER].
 
[We are regulated by [NAME OF RELEVANT REGULATOR].]
 
[We are an investment company.]
 
[We are a limited company.]
 
[Please note that our company is currently being wound up.]
 
[OTHER REQUIREMENTS APPLYING TO PARTICULAR PROFESSIONS.]
 
To contact us, please email [EMAIL ADDRESS] [or telephone our customer service line on [NUMBER]].
BY USING OUR SITE YOU ACCEPT THESE TERMS  
 
 
By using our site you accept these terms
 
 
Acceptance language
 
Despite the uncertainty around whether browse-wrap terms and conditions are effective to form a contract between the website operator and the user (see Drafting note, Contract or notice? above), the prudent approach is to ensure that the language of acceptance is used in the introduction to the terms of use. Even if it is not effective to create a contract, it may encourage users to comply with the terms.
 
Recommendation that users print a copy of the terms
 
A service provider contracting with a consumer or business must make the terms and conditions of that contract available in a way that allows the recipient to store and reproduce them (E-Commerce Regulations). Encouraging users to print terms and conditions is a common way of doing this.




By using our site, you confirm that you accept these terms of use and that you agree to comply with them.
 
If you do not agree to these terms, you must not use our site.
 
We recommend that you print a copy of these terms for future reference.
THERE ARE OTHER TERMS THAT MAY APPLY TO YOU  
 
 
There are other terms that may apply to you
 
This term cross refers to the other documents that will apply to the user. You must include links where indicated.
 
Under this term, the following terms will apply:
 
The website owner’s privacy policy. For more information on this, see Drafting note, How we may use your personal information.
The website owner’s acceptable use policy. This will require the visitor to comply with the content standards set out in it whenever they are using or accessing the website. For a template acceptable use policy, see Standard document, Website acceptable use policy. The obligation to comply with the acceptable use policy will not be enforceable if these terms do not form a contract (see Drafting note, Contract or notice?). See further under Uploading content to our site and Rules about linking to our site.
The website owner’s cookie policy, which gives users the necessary information about the website owner’s use of cookies as required by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208). For a template cookie policy, see Standard document, Cookie policy (PECR, GDPR and DPA 2018) (UK).
The website owner’s terms applying to the sale of goods or services. Any sale of goods or services via a website will be governed by a contract between the website owner and the customer. As in an offline context, the website owner will want to incorporate their standard terms of supply into any such contract with a user. For a template, see Standard document, Online business and consumer goods, services and digital content terms and conditions.




These terms of use refer to the following additional terms, which also apply to your use of our site:
 
Our Privacy Policy [INSERT AS LINK TO SITE’S PRIVACY POLICY]. See further under How we may use your personal information.
Our Acceptable Use Policy [INSERT AS LINK TO ACCEPTABLE USE POLICY], which sets out the permitted uses and prohibited uses of our site. When using our site, you must comply with this Acceptable Use Policy.
Our Cookie Policy [INSERT AS LINK TO COOKIE POLICY], which sets out information about the cookies on our site.
If you purchase goods from our site, our Terms and conditions of supply [INSERT AS LINK TO WEBSITE TERMS AND CONDITIONS OF SUPPLY] will apply to the sales.
WE MAY MAKE CHANGES TO THESE TERMS  
 
 
We may make changes to these terms
 
In a consumer context, terms that permit the trader to unilaterally vary a contract or notice without good reason are grey-listed as potentially unfair in the CRA (see Practice note, Consumer contracts: unfair terms and transparency: Grey-listed terms under the CRA).
 
To increase the chances of this provision being found fair, the term provides that any changes only apply to future use (and not to information already downloaded). The best practice would be to include a statement in the introductory paragraph indicating when the terms were last amended and (ideally) what changes were made. Optional wording for this is included in this clause.
 
Where users are registered and have click-accepted terms, some mechanism for notifying them of changes should be used, for example a pop-up notification when they first log on again after the changes having been made.




We amend these terms from time to time. Every time you wish to use our site, please check these terms to ensure you understand the terms that apply at that time. [These terms were most recently updated on [DATE] [when we changed clauses [DETAILS OF CLAUSES] and [DETAILS OF CLAUSES].]
WE MAY MAKE CHANGES TO OUR SITE  
 
 
We may make changes to our site
 
In this term, the website owner reserves the right to update or remove content published on the website. Experience shows that users tend to visit certain websites for specific content, and that they react in a negative way if certain features to which they have become accustomed, are removed by the website owner. It may be arguable that the website operator has represented that it will continue to make those features available or that it has a duty of care to users, which could be breached by the removal of the features without notice. This term seeks to negate any such representation or duty of care.
 
From a consumer perspective, terms in a contract or notice that give the trader a unilateral right to alter, without a valid reason and without notice, any characteristics of the digital content or services to be provided, are potentially unfair (see Practice note, Consumer contracts: unfair terms and transparency: Grey-listed terms under the CRA). We have included optional wording to increase the chances of this provision being found fair. The wording states the reasons why changes may be made and also provides for users to be given notice of changes, to allow them to make alternative arrangements. Good practice would involve the website owner flagging upcoming changes to its website prominently on the relevant pages, giving the user reasonable time to adapt to them.




We may update and change our site from time to time [to reflect changes to our products, our users’ needs and our business priorities OR [OTHER REASON]]. [We will try to give you reasonable notice of any major changes.]
WE MAY SUSPEND OR WITHDRAW OUR SITE  
 
 
We may suspend or withdraw our site
 
In this term the website owner reserves the right to suspend or withdraw the site. Terms that allow a trader to unilaterally terminate supplies to a consumer without good reason are potentially unfair (see Practice note, Consumer contracts: unfair terms and transparency: Grey-listed terms under the CRA). To reduce the risk of these provisions being found unfair, it is suggested that the website owner should indicate the reasons why it might suspend or withdraw the site and undertake to give reasonable notice of its plans to do so. In practice, notice could be given by way of emails to registered users or information on the site itself.




Our site is made available free of charge.
 
We do not guarantee that our site, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our site for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
 
You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these terms of use and other applicable terms and conditions, and that they comply with them.
WE MAY TRANSFER THIS AGREEMENT TO SOMEONE ELSE  
 
 
We may transfer this agreement to someone else
 
A trader reserving the right to assign or transfer its rights or obligations where this may serve to reduce the protection for a consumer is considered potentially unfair under the Consumer Rights Act 2015 (paragraph 19, Schedule 2, CRA). According to the Competition and Markets Authority’s Unfair terms guidance (paragraph 5.28), a term is unlikely to be fair if it allows for the transfer of rights and obligations that could result in either of the following:
 
The consumer having to deal with someone who, for instance, offers a poorer service.
Legal complications, such as a need for the consumer to deal with two traders.
According to the CMA guidance, an assignment clause is less likely to be considered unfair if it operates only in circumstances which ensure that the consumer’s rights under the contract will not be prejudiced in any way.




We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
OUR SITE IS ONLY FOR USERS IN [ENGLAND OR THE UK]  
 
Our site is only for users in [England OR the UK]
 [
The website owner may have a number of reasons for wanting to restrict use of its website to UK residents or a more restricted area (for example excluding Scotland and Northern Ireland). For example:
 
It may be difficult to provide the products it is selling outside England or the UK.
The trader may not have the resources to check any legal restrictions applicable to its website or products outside England or might not wish to lay itself open to disputes with users in other jurisdictions under other laws (where a website owner directs its activities at consumers in another EU member state, the courts of that member state may have jurisdiction over disputes with those consumers and local law may apply).
Using wording stating that the website is not intended for use by users outside the UK is one way of mitigating the above risks. Technological measures may also be possible.
 
In any event, these terms (which reflect English law) would need to be reviewed before their use on a website directed at users in another jurisdiction.




Our site is directed to people residing in [England OR the United Kingdom]. We do not represent that content available on or through our site is appropriate for use or available in other locations.]
YOU MUST KEEP YOUR ACCOUNT DETAILS SAFE  
 
 
You must keep your account details safe
 
This term provides that the user must keep any password or security information confidential. The website owner may have restricted the persons who can use the site or may simply want to know certain details about who is using it.
 
The final paragraph encouraging users to notify the website owner if their access details have been disclosed suggests that the website owner will do something (presumably block access and issue a new password) when it is so notified. The website owner should ensure that it has a process in place to do this.




If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
 
We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these terms of use.
 
If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at [EMAIL OR CONTACT DETAILS].
HOW YOU MAY USE MATERIAL ON OUR SITE  
 
 
How you may use material on our site
 
This term confirms that all intellectual property rights in the website, and in any material published on it, belong to the website owner or its licensors. Although the website owner grants limited licences to users of the site to use such material, it otherwise asserts the position of the rights owner.
 
However, it is unlikely that the term would be successful in preventing visitors from using the material displayed on the website in ways that would be covered by the “fair dealing” provisions set out in Chapter 3 of the Copyright, Designs and Patents Act 1988 (CDPA). For information on the fair dealing defences, see Practice note, Copyright: permitted acts: Fair dealing defences.
 
Experience has shown that statutory and contractual provisions aimed at the protection of intellectual property rights are ill-suited, in practice, to preventing unauthorised copying of website content (particularly of music), which takes place on a substantial scale. Although industry bodies such as the British Phonographic Industry (BPI) and the International Federation for the Phonograph Industry (IFPI) have taken steps to enforce their members’ intellectual property rights (see Article, Piracy and illegal file-sharing: UK and US legal and commercial responses), the time, cost and effort of enforcing those rights are often prohibitive for the individual website owner.
 
Rather than relying solely on this term, website owners may also put additional technical measures in place to prevent extraction or copying of the content of the site once the user has obtained access. This is known as copy protection or digital rights management (see Article, Licensing digital content: opportunities and risks).




We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
 
You may print off one copy, and may download extracts, of any page(s) from our site for your personal use and you may draw the attention of others within your organisation to content posted on our site.
 
You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
 
Our status (and that of any identified contributors) as the authors of content on our site must always be acknowledged.
 
You must not use any part of the content on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
 
If you print off, copy or download any part of our site in breach of these terms of use, your right to use our site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
DO NOT RELY ON INFORMATION ON THIS SITE  
 
 
Do not rely on information on this site
 
Many websites provide (often free of charge) information to users on specialised topics such as health, financial or legal issues. The website owner will be concerned that, even if information is given for free, the provision of such information may in limited circumstances result in the website owner assuming liability under the Hedley Byrne and Caparo principles (see Practice note, Negligent misstatement).
 
Liability in tort may arise where the person providing the advice (the website owner, one of his employees or contributors) may owe a duty of care to the website’s users because they have certain special knowledge, is aware that the user is likely to access the advice for a specific purpose and is aware that the user would reasonably rely on the advice for that purpose.
 
However, website owners may be able to avoid such liability by including on their website appropriate disclaimers or statements, which are designed to limit the expectations of their users.
 
For example, in Gary Patchett and another v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717, in a claim for damages for negligent misstatement, the Court of Appeal held that a trade association did not owe a duty of care to users of its website for a statement that members of the trade association had been vetted and their work was guaranteed by the trade association (see Legal update, Court of Appeal holds that website owner did not owe a duty of care to user). The court held that, although the trade association knew users would be likely to rely on the statements made on the website, it had also advised that potential customers should obtain an information pack before engaging a contractor (which the claimants failed to do). This meant that there was not sufficient proximity between the website owner and the claimants to give rise to a duty of care.
 
As such, this term includes express statements about the status of the content (for information purposes only). It also, importantly (in the light of Gary Patchett), tells the user to obtain specific professional or specialist advice before doing anything on the basis of the content.
 
See Practice note, Negligent misstatement.




The content on our site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our site.
 
Although we make reasonable efforts to update the information on our site, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete or up to date.
WE ARE NOT RESPONSIBLE FOR WEBSITES WE LINK TO  
 
 
We are not responsible for websites we link to
 
A website owner who links to another site risks becoming a party to legal action if the linked site contains unlawful content such as obscene or defamatory material or material that is subject to a confidentiality obligation (for example, see Legal update, High Court rules hyperlinks to unlawful content might incur liability). For discussion of the legal issues, see Practice note, Linking and framing.
 
This term seeks to exclude any potential liability of the website owner in such cases.




Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
 
We have no control over the contents of those sites or resources.
USER-GENERATED CONTENT IS NOT APPROVED BY US  
 
 
User-generated content is not approved by us
 
For a discussion of the website owner’s liability for user-generated content, see Drafting note, Uploading content to our site.




This website may include information and materials uploaded by other users of the site, including to bulletin boards and chat rooms. This information and these materials have not been verified or approved by us. The views expressed by other users on our site do not represent our views or values.
HOW TO COMPLAIN ABOUT CONTENT UPLOADED BY OTHER USERS  
 
 
How to complain about content uploaded by other users
 
Under the UK government’s Code of practice for providers of online social media platforms, social media providers are advised to have clear and accessible information about reporting processes in their terms and conditions. The Code states that it is “directed at social media platforms but is also relevant to any sites hosting user-generated content and comments, including review websites, gaming platforms, online marketplaces and the like”.
 
The Code advises that clear and accessible information about reporting processes may include:
 
Clear and accessible definitions of what constitutes as harmful conduct on the platform and rules against specified conduct.
 
Information on consequences for users in relation to the violation of terms and conditions.
 
A reference or link to an explanation of how guidelines are developed, enforced and reviewed including information on performance metrics on take-down.
 
These standard website terms and conditions envisage being used in conjunction with an acceptable use policy such as Standard document, Website acceptable use policy (see further under Uploading content to our site), which defines what the provider considers to be harmful content, gives information about action to be taken on breach and information on how guidelines are developed.




If you wish to complain about content uploaded by other users, please contact us on [HYPERLINK TO CONTACT US DETAILS].

OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU  
 
 
Our responsibility for loss or damage suffered by you
 
While the potential liabilities of each website need to be assessed by looking at its content and functionality, it is likely that the following potential claims could be made for most of them:
 
Liability for loss or damage arising out of reliance on or use of content on the site (see Drafting note, Do not rely on information on this site).
Liability for loss or damage arising out of inability to use the site (see Drafting note, We may make changes to our site and Drafting note, We may suspend or withdraw our site).
Liability for loss or damage caused by viruses on the site that affect the user (see Drafting note, We are not responsible for viruses and you must not introduce them).
Liability for loss or damage arising from third party websites linked in the site (see Drafting note, We are not responsible for websites we link to).
If relevant, liability for loss or damage arising out of goods or services sold to the user via the site. In this standard document, there are no terms and conditions dealing with sale terms, as these, and their relevant limitation of liability terms, are dealt with in Standard document, Online consumer goods, services and digital content terms and conditions. There is however a term bringing this to the attention of the user.
Many websites seek to wholly exclude all these liabilities as against both consumers and businesses. However, these terms take a different approach with regard to consumers for the following reasons:
 
Including a limit on liability presupposes that there is a contract with the consumer (if there is no contract no limits may be effectively imposed in any case (see Drafting note, Contract or notice?)).
If there is a contract, the CRA will imply terms into it requiring the website owner to use reasonable skill and care, provide services within a reasonable timescale and ensure that the services will match their description.
Wholly excluding these terms or liability for their breach is prohibited under the CRA: such exclusions would be unenforceable. Limiting liability for breach of such terms is permitted, where this is fair. However, this would involve setting a financial limit, which may be difficult to do, and may in any case be ineffective given that the CMA does not consider it fair to seek to deprive consumers of compensation in any circumstances in which they would normally be entitled to it by law (paragraph 5.3.4, CMA guidance).
As noted above (Drafting note, Consequences of non-compliance with consumer and business legislation), including terms that mislead consumers about their legal rights can attract enforcement action and criminal penalties.
Instead, as against consumers:
 
The clause makes it clear that no other wording, for example the provision stating the information should not be relied on, is an attempt to exclude liability that cannot be excluded by law, such as liability for death or personal injury caused by negligence. Wording that could be used to try to exclude non-excludable liabilities may be struck out in its entirety, even when it is only being used to protect against lesser liabilities.
The clause suggests areas in which consumers would have no valid claim, such as for business losses or for damage caused by digital content where this could have been avoided by proper installation.
Other steps a website owner can take to minimise its liability include:
 
Clearly setting out any limits to the scope and purpose of the website not just in the conditions but on the web pages themselves.
Having in place and following clear policies designed to discharge any contractual obligation to use reasonable skill and care and to discharge any duty of care that might give rise to an action in negligence. These might include policies for promptly dealing with complaints and keeping users informed of planned changes to and suspensions of the site by the use of pop-ups or other methods. The steps taken should be documented, so that they are available for use in evidence, should a claim be made.
As against businesses, the clause takes the standard approach of trying to exclude all the anticipated liabilities. However, such exclusions will only be effective if they are found to be reasonable (see Drafting note, Business controls only applicable to terms that are contracts).




Whether you are a consumer or a business user:
 
We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
Different limitations and exclusions of liability will apply to liability arising as a result of the supply of any products to you, which will be set out in our Terms and conditions of supply [INSERT AS LINK TO WEBSITE TERMS AND CONDITIONS OF SUPPLY].
If you are a business user:
 
We exclude all implied conditions, warranties, representations or other terms that may apply to our site or any content on it.
We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
use of, or inability to use, our site; or
use of or reliance on any content displayed on our site.
In particular, we will not be liable for:
loss of profits, sales, business, or revenue;
business interruption;
loss of anticipated savings;
loss of business opportunity, goodwill or reputation; or
any indirect or consequential loss or damage.
If you are a consumer user:
 
Please note that we only provide our site for domestic and private use. You agree not to use our site for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
If defective digital content that we have supplied, damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation. [However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.]
 
Exclusion of liability for digital content
 
The first sentence reflects the trader’s liability for damage caused by digital content (section 46, CRA) (see Practice note, Consumer contracts: supplying digital content: Liability for damage caused by digital content).
 
A trader may limit its liability for such damage, provided the limit passes the fairness test. What constitutes exercising reasonable care and skill and what can fairly be excluded will depend on the circumstances: for example (but not exhaustively), the content itself, the platform, related content, the target consumer market and known issues in any of those.
 
The wording in the square brackets reflects examples given by BIS but they should only be included if relevant to the particular circumstances of the digital content in question. It is best to ask the provider of the digital content what could go wrong in terms of damage to other content or devices, what the consumer could do to prevent that happening, and whether it would be fair to expect the consumer to take on those responsibilities.





HOW WE MAY USE YOUR PERSONAL INFORMATION  
 
 
How we may use your personal information
 
When dealing with a consumer’s personal data, traders must comply with data protection and privacy laws. In particular, the requirement for transparency means that certain information must be provided to consumers about how their personal data is being processed.
 
Best practice is to set out the transparency information in a stand-alone privacy policy which is prominently flagged to the consumer. These terms and conditions do not duplicate the privacy policy; to do so is unnecessary. However, a link to the privacy policy is provided.
 
For a sample privacy policy, see Standard document, Website privacy policy (GDPR and DPA 2018) (UK).
 
If drafting for children, service providers should take account of the requirement of the ICO’s Age-Appropriate Design Code which says:
 
”The privacy information you provide to users, and other published terms, policies and community standards, must be concise, prominent, and in clear language suited to the age of the child. Provide additional specific “bite-sized” explanations about how you use personal data at the point that use is activated.




We will only use your personal information as set out in our [LINK TO PRIVACY POLICY].

UPLOADING CONTENT TO OUR SITE  
 
 
Uploading content to our site
 
 
Users to click accept terms before uploading content
 
Many website owners allow users to upload their own material to the website when they are, for example, using a chat room facility or posting a message on a bulletin board or comments thread. Before users are permitted to upload they should be obliged to click accept the website terms, so creating a contract (see Drafting note, Contract or notice?). If no contract is formed the warranties and indemnity in this clause would not be enforceable and the website owner may also not have as wide a licence to use uploaded content as is being sought in these terms.
 
Website owner’s liability for uploaded content
 
 
Position under the E-Commerce Directive
The website owner’s liability for material uploaded by users is generally limited (see Legal update, E-commerce Directive: extending the limits of liability for a detailed description of a website owner’s liability for third party content). However, the owner may, in certain situations, be deemed to have acted as a publisher of the content in question. This means that the owner may become liable where the material uploaded by the user is defamatory (see Practice note, Overview of defamation) or where its publication violates a third party’s intellectual property rights.
 
Contractual protections for the website owner
Where the website owner is unable to avoid liability for content uploaded by users, it will want to be able to bring a claim against the relevant user, for any loss or damage incurred by the website owner in this respect. This term includes a warranty by the user that any contribution they make to the website complies with certain content standards. It also contains an indemnity for any loss or damage incurred by the website owner arising from a breach by the user of that warranty. Note that a term in a contract with a consumer, by which the consumer is required to indemnify another person (whether a party to the contract or not) for liability incurred by the other person for negligence or breach of contract, is enforceable only to the extent that it satisfies the fairness test in the CRA.
 
Content standards
 
The content standards with which users of the website have to comply can be set out in the terms of use. However, in practice, many website owners include such content standards in a separate acceptable use policy. In this event, a link to the webpage displaying the acceptable use policy should be included in this term.
 
Obtaining consent for disclosure to third parties
 
Website owners may be under a legal obligation to disclose to third parties, including public authorities, material uploaded to the website as well as the identity of the user responsible for uploading the material. In the past, users have claimed that information uploaded by them onto a website was confidential and proprietary, and that the copying of the material necessary for such disclosure breached their intellectual property rights. Users have also claimed that disclosure of their identity and personal details to public authorities and third parties seeking to bring a claim against them (for instance, for defamation or breach of intellectual property rights) violates their rights under data protection legislation. This has become of particular interest in several cases brought by the BPI against internet service providers whose customers have used their internet access for the purpose of illegal peer-to-peer file sharing and copying of digital music (see Legal update, ISPs forced to reveal names of illegal file swappers). Although the courts have decided in favour of disclosure by the ISPs in nearly all known cases, the website owner should ideally obtain the user’s consent to such disclosure at the start of the relationship. This term obtains such consent. Also, in this context, see Legal update, Advocate General finds dynamic IP addresses can be personal data.
 
User-generated content: industry self-regulation
 
The increase of user-generated content prompted several companies, including NBC Universal, Microsoft, The Walt Disney Company and MySpace, to announce their support for a set of principles for user-generated content services, which are intended to help user-generated content service providers and commercial copyright-owners achieve various objectives, including eliminating infringing content on user-generated content services and accommodating fair use of copyrighted content on such services (see User Generated Content Principles and Legal update, Principles for user-generated content services published). Among other things, the principles provide that user-generated content service providers should prohibit infringing uploads in their terms of use; implement filtering technology, in co-operation with copyright-owners, to try to eliminate infringing content; and block links to sites that have been identified as being clearly dedicated to, or predominantly used for, the dissemination of infringing content. Website owners should consider whether they wish to adhere to such principles.
 
Website owner’s rights to take materials down
 
The website owner may be legally obliged to remove material posted by a user from the website, if such material is defamatory or in breach of a third party’s intellectual property rights, to avoid liability for such material under regulation 19 of the E-Commerce Regulations. This term authorises such removal. See Practice note, Overview of defamation: Defences under the E-Commerce Regulations 2002.
 
Terrorist content
 
The European Commission recommendation on measures to tackle illegal content online of 1 March 2018 recommends that hosting service providers should expressly set out in their terms of service that they will not store terrorist content (paragraph 30).
 
Video-sharing platforms
 
If the service provider is offering a “video-sharing platform” as defined in section 368S, CA 2003, the service provider will have to comply with additional regulations. For more information, see Practice note, Video-sharing platforms.




Whenever you make use of a feature that allows you to upload content to our site, or to make contact with other users of our site, you must comply with the content standards set out in our Acceptable Use Policy [INSERT AS LINK TO ACCEPTABLE USE POLICY].
 
You warrant that any such contribution does comply with those standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
 
Any content you upload to our site will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you are required to grant us [and other users of our site] a limited licence to use, store and copy that content and to distribute and make it available to third parties. The rights you license to us are described in Rights you are giving us to use material you upload [INSERT AS LINK].
 
We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our site constitutes a violation of their intellectual property rights, or of their right to privacy.
 
We have the right to remove any posting you make on our site if, in our opinion, your post does not comply with the content standards set out in our Acceptable Use Policy [INSERT AS LINK TO ACCEPTABLE USE POLICY].
 
You are solely responsible for securing and backing up your content.
 
We do not store terrorist content.
RIGHTS YOU ARE GIVING US TO USE MATERIAL YOU UPLOAD  
 
 
Rights you are giving us to use material you upload
 
The licences required to permit the website operator to use content uploaded by a user for its own commercial purposes will depend on the type of service it offers and the type of third parties that require rights to use that content.
 
As a general rule, a website operator will require a perpetual, worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, distribute, prepare derivative works of, display, and perform that user-generated content in connection with the service provided by the website and across different media. It may also wish to use the content to promote the site or the service.
 
In addition, the website operator may want to obtain a licence that allows third parties (for example, other users, partners or advertisers) to use the content for their purposes or in accordance with the functionality of the site.
 
The terms should state the period for which these licences are in place, in particular, if they expire when the user deletes the content from the site.




When you upload or post content to our site, you grant us the following rights to use that content:
 
[a worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, distribute, prepare derivative works of, display, and perform that user-generated content in connection with the service provided by the website and across different media [including to promote the site or the service] [to expire when the user deletes the content from the site OR forever OR [SPECIFY TERM];]
[a worldwide, non-exclusive, royalty-free, transferable licence for [other users, partners or advertisers] to use the content [for their purposes OR in accordance with the functionality of the site] [to expire when the user deletes the content from the site OR forever OR [SPECIFY TERM].]
WE ARE NOT RESPONSIBLE FOR VIRUSES AND YOU MUST NOT INTRODUCE THEM  
 
 
We are not responsible for viruses and you must not introduce them
 
In recent years, websites have often been targeted by hackers and others who, for commercial gain or criminal purposes, have tried to disable the website or to gain access to databases connected to the website (for example, databases containing customers’ credit card details). To this end, they have introduced viruses or other technologically harmful material, or launched denial-of-service or distributed denial-of-service attacks.
 
In the majority of cases, the user in question will be deemed to have committed a criminal offence under the Computer Misuse Act 1990 and will face criminal liability. However, website operators should note that under certain circumstances, denial-of-service attacks will not constitute a criminal offence (see Legal update, Magistrates’ court dismisses charges arising from denial-of-service attack). See also Legal update, Commencement regulations under Serious Crime Act 2015: IP&IT and Media & Telecoms implications in relation to the creation of a new offence of unauthorised acts in relation to a computer that resulted in serious damage.
 
This term does the following:
 
Allows the website owner to disclose information relating to the relevant user’s identity to law enforcement authorities and to suspend a user’s right to use the website with immediate effect.
States that any such action by the user will be deemed to be a breach of the website terms and conditions, which may result in the user being liable for any loss or damage incurred by the website owner as a result of such an attack. In practice, there have been few cases where website owners have brought civil claims against hackers and other perpetrators of computer crime. However, with recent increases in computer crime and improvements in computer forensics, companies may in the future decide to bring more civil actions against the perpetrators. This term seeks to improve a website owner’s legal position by giving them a claim for breach of contract in these situations. Such a claim will only be possible if the user has click accepted the terms of use (see Drafting note, Contract or notice?).




We do not guarantee that our site will be secure or free from bugs or viruses.
 
You are responsible for configuring your information technology, computer programmes and platform to access our site. You should use your own virus protection software.
 
You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.

RULES ABOUT LINKING TO OUR SITE  
 
 
Rules about linking to our site
 
This term allows the user to link to the website provided certain conditions are met. It sets out in detail the ways in which a third party website owner may set up a link from their website to the website owner’s website. It also makes clear that any other form of linking to the website is subject to the website owner’s express consent.
 
For discussion of the legal issues, see Practice note, Linking and framing.




You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
 
You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
 
You must not establish a link to our site in any website that is not owned by you.
 
Our site must not be framed on any other site, nor may you create a link to any part of our site other than the home page.
 
We reserve the right to withdraw linking permission without notice.
 
The website in which you are linking must comply in all respects with the content standards set out in our Acceptable Use Policy [INSERT AS LINK TO ACCEPTABLE USE POLICY].
 
If you wish to link to or make any use of content on our site other than that set out above, please contact [EMAIL ADDRESS].

WHICH COUNTRY’S LAWS APPLY TO ANY DISPUTES?  
 
 
Which country’s laws apply to any disputes?
 
For business users, this term specifies that any dispute between the website owner and the business user will be subject to English law and the exclusive jurisdiction of the courts of England and Wales. For further information on law and jurisdiction clauses, see Practice note, Governing law and jurisdiction clauses.
 
For consumer users, this term specifies that any dispute between the website owner and the consumer user will be subject to English law. Proceedings can be brought in any of the UK home nations as the CMA considers that a term preventing a consumer from taking action in their home jurisdiction is potentially unfair and unenforceable.
 
 
Non-contractual disputes or claims
 
The terms make express reference to “non-contractual disputes or claims” (mainly torts) and tries to bring these within the choice of law of the website owner. This may not succeed but is expressly stated in case it might do so.
 
Non-contractual obligations are, since 11 January 2009, governed by the Rome II Regulation (Rome II). The general rule under Rome II is that the law applicable to non-contractual obligations is the law of the country in which the damage occurs or is likely to occur (Article 4(1)). But in certain cases, there are specific rules that override the general rule, such as:
 
The infringement of an intellectual property right (Article 8). In this case, the applicable law is the law of the country for which protection is claimed (Article 8.1). In the case of a non-contractual obligation arising from an infringement of a unitary EU intellectual property right (such as EU trademarks, designs and plant variety rights), if the issue is not governed by the relevant EU instrument, the applicable law is the law of the country in which the act of infringement was committed (Article 8.2).
Product liability (damage caused by a product) (Article 5). In this case, specific rules apply to determine the applicable law (for these rules, see Practice note, Governing law: non-contractual obligations: Product liability).
Unfair competition (Article 6). According to the Ministry of Justice, rights such as business secrets, trade secrets, confidentiality, or torts such as passing off may fall within the scope of the rules on unfair competition (and not the rules on intellectual property). For further information, see Practice note, Governing law: non-contractual obligations.
While Rome II does provide the parties with freedom of choice to choose a governing law clause that covers both contractual and non-contractual obligations and disputes before the event, this freedom of choice does not apply to:
 
Agreements that are not “freely negotiated”. In a standard form (non-negotiated) agreement or terms and conditions, the choice of governing law for non-contractual obligations may be ineffective. Although the meaning of “freely negotiated” has not been defined in Rome II, its requirement creates uncertainty over whether a non-contractual obligation governing law clause in standard form agreements will be effective.
Infringement of an intellectual property right.
Unfair competition.
Product liability. Only parties to a negotiated business-to-business agreement can choose a law to disapply the rules in Rome II.
For information on the continued application of Rome II during the Brexit transition period, see Practice note, Brexit: implications for civil justice and judicial co-operation: Rules that apply during the transition period, and for information on the rules that will apply after the Brexit transition period, see Practice note, Brexit: implications for civil justice and judicial co-operation: Rules that apply from the end of the transition period.




If you are a consumer, please note that these terms of use, their subject matter and their formation, are governed by English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction except that if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.
 
If you are a business, these terms of use, their subject matter and their formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.
OUR TRADE MARKS ARE REGISTERED  
 
 
Our trade marks are registered
 
This term makes clear that certain names or logos are trade marks of the website owner and that their unauthorised use would constitute a violation of the website owner’s intellectual property rights.




[”TRADE MARK 1”] and [”TRADE MARK 2”] are [UK registered] trade marks of [COMPANY NAME]. You are not permitted to use them without our approval, unless they are part of material you are using as permitted under How you may use material on our site [INSERT AS LINK].