Market Stalls Australia Online Pty Ltd

Terms and Conditions of Use

  1. Introduction

1.1          These terms and conditions shall govern your use of our website. By using or accessing this site you acknowledge that you have read, understood and agree to be bound by these terms and conditions of use.

1.2          Market Stalls Australia Online website (www.marketstallsaustralia.com.au) is owned and operated by Market Stalls Australia Online Pty Ltd (herein known after as MSAO) ABN 21 607 559 017

1.3          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.

1.4          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.

1.5          You must be at least 18 years of age to use our website; and 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.

1.6          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) 2015 Market Stalls Australia Online Pty Ltd.

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;

(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 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. Affiliate links

5.1          Our website includes links to third party merchant websites supplying goods and/or services.

5.2          We may earn affiliate fees from a merchant if you click on that merchant’s link on our website and subsequently make a purchase on the merchant’s website.

5.3          You acknowledge that:

(a)           we do not vet third party merchants;

(b)           we do not check, audit, monitor or control: the identity, credit worthiness or bona fides of third party merchants; the security of third party merchant websites; or the accuracy of the information published on third party merchant websites;

(c)           we are not party to any contract for the sale or purchase of goods or services entered into between you and a third party merchant; and

(d)           our website contains information supplied by third party merchants, and we do not check, audit or monitor the accuracy of that information,

and accordingly we will not be liable to you in relation to any loss or damage arising out of any use of a third party merchant website, any information supplied by a third party merchant, any offer made by a third party merchant, or any contract with a third party merchant.

5.4          We are not responsible for the enforcement of any obligations arising out of a contract between you and any third party, and we will have no obligation to mediate between the parties to any such contract.

5.5          The provisions of this Section 5 are subject to Section 20.1.

  1. Use on behalf of organisation

6.1          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 .

  1. Registration and accounts

7.1          To be eligible for an individual account on our website under this Section 7, you must be at least 18 years of age and resident in Australia.

7.2          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.

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

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

7.5          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

8.1          If you register for an account with our website, we will provide you with a user ID and password.

8.2          Your user ID must not be liable to mislead and must comply with the content rules set out in Section 17; you must not use your account or user ID for or in connection with the impersonation of any person.

8.3          You must keep your password confidential.

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

8.5          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

9.1          We may:

(a)           suspend your account;

(b)           cancel your account; and/or

(c)           edit your account details,

at any time in our sole discretion without notice or explanation, providing that if we cancel any services you have paid for and you have not breached these terms and conditions, we will refund to you a pro rata amount of your payment, such amount to be calculated by us using any reasonable methodology.

9.2          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 9.2.

  1. Directory

10.1        We welcome submissions to the directory published on our website.

10.2        Each submission to our directory must be a listing in respect of markets and events, stallholders, staff finder, hobbyists and classifieds  and provides the user with the ability to view information, products and services and to advertise their market, event, individual stallholders, classifieds and services related to obtaining staff and staff available listings, and any related goods and services from related or associated suppliers and service providers

10.3        For the avoidance of doubt, your directory submissions constitute “your content” for the purposes of Section 16 and Section 17, and must comply with the acceptable use rules set out in Section 4.

10.4        You must keep your directory submissions up to date using our website interface.

  1. Free directory listings

11.1        You may submit a free listing to our directory by selecting the “Submit a Listing” link on the website www.marketstallsaustralia.com.au

11.2        If we accept your free directory listing submission, it will remain published on our website for the relevant period set out on our website, subject to termination or deletion in accordance with these terms and conditions.

11.3        We may delete a free directory listing at any time, with or without notice to you.

  1. Paid directory listings

12.1        You may submit a paid listing to our directory by selecting the “Submit a Listing” link on the website www.marketstallsaustralia.com.au

12.2        You will have the opportunity to identify and correct input errors prior to making your order by scrolling through and amending the listing.

12.3        Paid submissions include the following benefits: multiple images and video and extra content fields.

12.4        If we accept a paid directory submission, it will remain published on our website for the relevant period specified on our website, subject to termination or deletion in accordance with these terms and conditions.

12.5        We may delete a paid directory listing at any time, providing that if we delete a paid listing in accordance with this Section 12.5 before the end of the period in respect of which listing fees have been paid, we will refund to you a pro-rated portion of those listing fees reflecting the unexpired listing period, such amount to be calculated by us using any reasonable methodology.

  1. Prohibited directory submissions

13.1        Without prejudice to our other rights under these terms and conditions, we reserve the right to reject or delete directory submissions that breach these terms and conditions, or that do not meet the additional guidelines for submissions published on our website.

13.2        If we reject or delete a directory submission in accordance with this Section 13, we will not refund any applicable charges.

  1. Advertisements

14.1        We welcome the submission of advertisements to our website.

14.2        You may submit an advertisement to our directory by selecting the “Advertise with us” link on the website www.marketstallsaustralia.com.au

14.3        You will have the opportunity to identify and correct input errors prior to making your order by re-uploading your image .

14.4        Advertisements submitted to our website must constitute bona fide advertisements relating to Australia’s Marketplace that are true, fair and accurate in all respects.

14.5        Advertisements must be listed in the appropriate category or categories.

14.6        Advertisements submitted to our website must not be for any product, service or other subject matter that:

(a)           breaches any laws, regulations or codes;

(b)           infringes any third party intellectual property rights or other legal rights; or

(c)           may give rise to a cause of action against any person,

in each case in any jurisdiction and under any applicable law.

14.7        Advertisements submitted to our website must not be for any product, service or other subject matter that:

(a)           consists of or contains material that would, if published on our website by you, contravene the provisions of Section 17;

(b)           is or relates to:

(i)            drugs, narcotics, steroids or controlled substances;

(ii)           obscene, indecent, pornographic or sexually explicit materials;

(iii)          knives, swords, firearms or other weapons;

(iv)          ammunition for any weapon;

(v)           items that encourage or facilitate criminal acts or civil wrongs; or

(vi)          items that encourage or facilitate the infringement of any intellectual property right]; or

 

14.8        Your advertisements must comply with the requirements of Section 4 and Section 17.

14.9        You grant to us a worldwide, non-exclusive, royalty-free licence to publish your advertisements on our website, and to copy, alter and store your advertisements in connection with their publication on our website, together with the right to sub-license these rights.

14.10      You must keep your advertisements up to date using our website interface, and must delete or unpublish any advertisements that have ceased to be relevant to our users (for example, because products advertised are no longer available).

14.11      Advertisements submitted to our website will be individually reviewed, and will usually be published within following submission; however, we do not guarantee publication within this period.

14.12      Without prejudice to our other rights under these terms and conditions, we reserve the rights to reject, unpublish or delete advertisements that breach these terms and conditions or that do not meet any additional guidelines for submissions published on our website. If we reject, unpublish or delete an advertisement in accordance with this Section 14.12, we will not refund any applicable listing fees.

14.13      If we accept your advertisement submission, then it will remain published on our website for the relevant period set out on our website, subject to these terms and conditions.

14.14      From time to time we may allow the publication of advertisements on our website free of charge, providing that free advertisements will be subject to such additional terms and conditions as we may specify from time to time, and we may delete free advertisements at any time in our sole discretion with or without notice to you.

  1. Fees

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

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

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

15.4        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.

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

15.6        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.

15.7        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. Your content: licence

16.1        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.

16.2        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 / reproduce, store and publish your content on and in relation to this website and any successor website / reproduce, store and, with your specific consent, publish your content on and in relation to this website].

16.3        You grant to us the right to sub-license the rights licensed under Section 16.2.

16.4        You grant to us the right to bring an action for infringement of the rights licensed under Section 16.2.

16.5        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.

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

16.7        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

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

17.2        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).

17.3        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)            depict violence in an explicit, graphic or gratuitous manner;

(m)         be pornographic, lewd, suggestive or sexually explicit;

(n)           be untrue, false, inaccurate or misleading;

(o)           consist of or contain any instructions, advice or other information which may be acted upon and could, if acted upon, cause illness, injury or death, or any other loss or damage;

(p)           constitute spam;

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

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

17.4        Your content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

17.5        You must not use our website to link to any website or web page consisting of or containing material that would, were it posted on our website, breach the provisions of these terms and conditions.

17.6        You must not submit to our website any material that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

  1. Report abuse

18.1        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.

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

  1. Limited warranties

19.1        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.

19.2        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.

19.3        To the maximum extent permitted by applicable law and subject to Section 20.1, 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

20.1        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.

20.2        The limitations and exclusions of liability set out in this Section 20 and elsewhere in these terms and conditions:

(a)           are subject to Section 20.1; 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.

20.3        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.

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

20.5        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.

20.6        We will not be liable to you in respect of any loss or corruption of any data, database or software.

20.7        We will not be liable to you in respect of any special, indirect or consequential loss or damage.

20.8        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).

20.9        Our aggregate liability to you in respect of any contract to provide services to you under these terms and conditions shall not exceed the total amount paid and payable to us under the contract.

  1. Indemnity

21.1        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:

(a)           any breach by you of any provision of these terms and conditions; or

(b)           your use of our website.

  1. Breaches of these terms and conditions

22.1        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)           block computers using your IP address from accessing our website;

(e)           contact any or all of your internet service providers and request that they block your access to our website;

(f)            commence legal action against you, whether for breach of contract or otherwise; and/or

(g)           suspend or delete your account on our website.

22.2        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.

  1. Third party websites

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

23.2        We have no control over third party websites and their contents, and subject to Section 20.1 we accept no responsibility for them or for any loss or damage that may arise from your use of them.

  1. Trade marks

24.1        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.

24.2        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. Competitions

25.1        From time to time we may run competitions, free prize draws and/or other promotions on our website.

25.2        Competitions will be subject to separate terms and conditions (which we will make available to you as appropriate).

  1. Variation

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

26.2        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.

  1. Assignment

27.1        You hereby agree that we may assign, transfer, sub-contract or otherwise deal with our rights and/or obligations under these terms and conditions.

27.2        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

28.1        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.

28.2        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

29.1        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.

29.2        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

30.1        Subject to Section 20.1, 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

31.1        These terms and conditions shall be governed by and construed in accordance with

31.2        Any disputes relating to these terms and conditions shall be subject to the exclusive jurisdiction of the courts of Australia.

  1. Statutory and regulatory disclosures

32.1        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.

32.2        These terms and conditions are available in the English language only.

  1. Our details

33.3        Our principal place of business is at Suite 7, 8-10 Waratah St, Mona Vale, NSW 2103

33.4        You can contact us by writing to the address given above, by using our website contact form, by telephone on the number given on our website from time to time or by email to the email address given on our website from time to time.

 

 

Drafting notes for directory, affiliate and advertising website terms and conditions

This template combines the provisions of our terms and conditions templates for directory websites, affiliate websites and advertising websites.

The provisions relating to directories cover both free directory entries and those for which a person seeking a listing must pay – although it is a straightforward matter to omit either the free listing provisions or the paid listing provisions.

The section covering affiliates is designed to cover hyperlinks to merchant websites that are published on the website, where the website operator will earn commission or some other financial benefit if users click on those links and then go on to make a purchase or take some other defined action.

The advertising provisions are designed to cover the publication of advertisements on the website (e.g. banner ads) in exchange for the payment of fees.

Directory, affiliate and advertising website terms and conditions body

Section 1 – Introduction

Section 1.2

Optional element.

The completed document should be easily accessible on the website, with a link from every page.

Section 1.3

Will all or any website users give their express consent to the terms of this document?

Under what circumstances will users be asked to give their express consent to the terms of this document?

Ideally, from a legal perspective, all users would be asked to expressly agree to the terms of the document. However, in practice, express consent is rarely sought from casual website visitors. On the other hand, it is easy to obtain the express consent of users who register with the website or submit any material to the website, e.g. by clicking “I accept” on an electronic version of the document. You should retain evidence of the acceptance of the document terms by each such user.

Section 1.4

Are there any age restrictions on the use of the website?

What is the minimum age for website users?

The use of websites by minors can be legally problematic. There are a number of different legal issues. For example, under English law, contracts may be unenforceable against minors. Another issue concerns data protection. The law of data protection imposes additional burdens in relation to the processing of any personal data of a minor and personal data provided by a minor. The effects of the law of indecency may also depend upon whether a website is accessible by minors. Obviously, the inclusion of a requirement in your terms and conditions that minors refrain from using a website is no guarantee that they will do so. Where your website is directed at, or likely to be used by, minors, we recommend that you seek specialist legal advice.

Section 1.5

Does the website use cookies (including session cookies and third party cookies)?

What is the title of the document on the website that contains cookie information?

The inclusion of this statement in your website legal documents will not in itself satisfy the requirements of the 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).

Section 2 – Copyright notice

Section 2.1

What was the year of first publication of the relevant copyright material (or the range of years)? Who is the principal owner of copyright in the website?

Section 3 – Licence to use website

The scope of the licence to use will vary with each site. Consider carefully exactly what your users should be allowed to do with your website and material on your website.

Section 3.1

(d) – Will audio and/or video files be published on the website?

(e) – Will the website make available any dynamic services to users? Describe the website services in question.

Section 3.2

Optional element.

Section 3.3

Optional element.

For what purposes may the website be used?

Section 3.4

Optional element.

Section 3.6

Are users permitted to redistribute any specific content from the website (e.g. newsletters)?

What types of content are redistributable? In what formats may redistributable content be redistributed? To whom may redistributable content be redistributed?

Section 4 – Acceptable use

Section 4.1

(e) – Should all automated interactions with the website be prohibited?

(f) – Will the website incorporate a robots.txt file?

(g) – Should users be prohibited from using the website for direct marketing activity?

Section 4.2

Optional element.

What standard of veracity etc should user-submitted content meet?

Section 5 – Affiliate links

Section 5.2

Optional element.

Will affiliate fees only be earned where a user makes a purchase on a merchant website?

Section 5.3

Optional element.

(d) – Will the website incorporate any information supplied by merchants?

Section 5.4

Optional element.

Section 5.5

Optional element.

Section 6 – Use on behalf of organisation

Do you want to expressly bind business (and other organisations) on whose behalf the website is used to the terms of this document?

Section 6.1

Do you wish to specify the particular exceptions to the general rule? What exceptions are there to the general rule that “you” refers to both the individual and the organisation?

Section 7 – Registration and accounts

Does the website allow users to register for an account?

Section 7.1

Do any eligibility criteria apply to account registration?

What eligibility criteria apply?

Section 7.2

How do users register with the website?

Section 7.3

Will users be permitted to share their accounts?

Section 7.4

Optional element.

Section 7.5

Optional element.

Are users permitted to use another person’s account on the website with the permission of that other person?

Section 8 – User login details

Optional element.

Section 8.1

How will users’ login details be generated? What account credentials will users have upon account creation?

Section 8.2

Optional element.

Section 8.3

Optional element.

Section 8.4

Optional element.

Section 8.5

Optional element.

Section 9 – Cancellation and suspension of account

Optional element.

Section 9.2

How may a user cancel his or her account on the website?

Section 10 – Directory

Section 10.1

Optional element.

Section 10.2

Optional element.

What may be listed in the website directory (for instance a website, a business or a product)?

Section 10.4

Optional element.

Section 11 – Free directory listings

Does the website publish free directory listings?

Section 11.1

How should a user go about submitting a free listing for the directory?

Section 11.2

How long will free directory entries remain published in the directory? Specify the period of publication.

Section 11.3

Optional element.

Section 12 – Paid directory listings

Does the website publish paid directory listings?

The provisions of this section assume that only businesses (and not consumers) will pay for directory listings.

Section 12.1

How should a user go about submitting a paid/premium directory listing?

Regulation 9(1)(a) of the Electronic Commerce (EC Directive) Regulations 2002: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (a) the different technical steps to follow to conclude the contract”.

One such step should be the provision of an acknowledgement of receipt of the order to the service recipient “without undue delay and by electronic means” (Regulation 11(1)(a)). This requirement does not however apply “where parties who are not consumers have agreed otherwise”.

Section 12.2

Optional element.

Can you describe the error identification and correction process? Describe process.

This is intended to meet the requirements of Regulation 9(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002, which states: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (c) the technical means for identifying and correcting input errors prior to the placing of the order.”

See also Regulation 11(1)(b): “Unless parties who are not consumers have agreed otherwise, where the recipient of the service places his order through technological means, a service provider shall … make available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order”.

Section 12.3

Optional element.

What benefits do users get by paying for their directory entries (e.g. greater prominence in listings, additional analytics functionality)?

Section 12.4

For what period will paid directory listings remain published on the website? Specify the period for which paid listings will remain published.

Section 12.5

Optional element.

Section 13 – Prohibited directory submissions

Section 13.1

May additional guidelines for submissions be published on the website?

Section 13.2

Optional element.

Section 14 – Advertisements

Section 14.1

Optional element.

Section 14.2

How can a user submit an advertisement for publication on the website?

This may help you to meet the requirements of Regulation 9(1)(a) of the Electronic Commerce (EC Directive) Regulations 2002: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (a) the different technical steps to follow to conclude the contract”.

One way to describe the process would be using a series of numbered steps. One step should be to provide acknowledgement of receipt of the order to the recipient of the service “without undue delay and by electronic means” (Regulation 11(1)(a)). This requirement does not however apply “where parties who are not consumers have agreed otherwise”.

Section 14.3

Optional element.

Can you describe the error identification and correction process? Describe process.

This is intended to meet the requirements of Regulation 9(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002, which states: “Unless parties who are not consumers have agreed otherwise, where a contract is to be concluded by electronic means a service provider shall, prior to an order being placed by the recipient of a service, provide to that recipient in a clear, comprehensible and unambiguous manner the information set out in (a) to (d) below … (c) the technical means for identifying and correcting input errors prior to the placing of the order.”

See also Regulation 11(1)(b): “Unless parties who are not consumers have agreed otherwise, where the recipient of the service places his order through technological means, a service provider shall … make available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors prior to the placing of the order”.

Section 14.4

Optional element.

Must advertisements relate to some specific subject matter? To what subject matter must advertisements relate?

Section 14.5

Optional element.

Section 14.7

Do you want to prohibit any advertisements that, whilst they may not be actually unlawful, are in some other way undesirable?

What types of prohibition would you like to include in the document?

(b) – What specific types of prohibition should apply regarding things that are advertised on the website?

(c) – Specify any further prohibitions you would like to apply.

Section 14.10

Optional element.

Section 14.11

Optional element.

Will advertisements be automatically processed or individually reviewed before publication? How long will it typically take to publish advertisements following submission?

Section 14.13

How long will advertisements remain published on the website?

Section 14.14

Will users ever be permitted to publish advertisements on the website free of charge?

Section 15 – Fees

Section 15.2

Is the website operator registered for VAT?

Will fees be stated inclusive or exclusive of VAT?

Under the Price Marking Order 2004, VAT-inclusive selling prices must be shown to consumers. VAT-exclusive prices can be, and usually are, shown to business customers.

Section 15.5

Optional element.

Section 15.6

Will the website operator be entitled to compensation in the event of an unjustified charge-back?

Within what period will customers have to pay charges associated with charge-backs (starting on the date of a written request for payment)?

(c) – What administration fee will you charge to customers who initiate an unjustified charge-back?

Section 15.7

Optional element.

Section 15.8

Does the website operator need a right of set off in relation to sums owed by users?

Section 16 – Your content: licence

Section 16.2

What type of licence do users grant to the website operator? What does the licence allow the website operator to do with user content?

Section 16.4

Should the website operator be granted a right to bring proceedings in respect of third party infringements?

Section 16.5

Should users be asked to waive their moral rights (such as the right of paternity and the right to object to derogatory treatment) in the content they submit to the website?

Section 16.6

Can users edit their own content after it has been posted to the website?

Section 17 – Your content: rules

Section 17.2

This very general prohibition against unlawful user content may be supplemented by rules relating to specific kinds of illegality, as well as prohibitions upon lawful but undesirable content.

Section 17.3

Optional element.

(f) – Do you want to expressly prohibit the publication by users of information about how to commit crimes and the promotion of criminal activities?

(l) – Should the depiction of violence be prohibited? Should the prohibition on depicting violence be limited to explicit etc violence?

(m) – Should pornographic material be prohibited? Should the prohibition on pornographic material be supplemented with a prohibition on lewd, suggestive or sexually explicit material?

(n) – Should untrue, false, inaccurate or misleading content be prohibited?

(o) – Should potentially dangerous advice be prohibited?

(p) – Should spam be prohibited?

(q) – Should offensive etc material be prohibited?

(r) – Should annoying etc material be prohibited?

Section 17.4

Do you want to require civility from your users in relation to the posting of material on the website?

Section 17.5

Do you want to prohibit hyperlinks in user content that point to material that is prohibited by the terms of this document?

Section 17.6

Optional element.

Section 18 – Report abuse

Will there be a special procedure (which could be as simple as a designated email address) for reporting abusive conduct or materials on the website?

Websites that allow the publication of user generated content should incorporate an abuse reporting procedure. The existence of such a procedure may help the website operator to take advantage of certain defences that may be available in respect of such user generated content. For instance, the website operator defence set out in Section 5 of the Defamation Act 2013 and elaborated in the Defamation (Operators of Websites) Regulations 2013 will only be available where the operator has responded to a notice of complaint sent by the complainant, a process which may be made simpler by the use of a dedicated communications channel. The guidance notes accompanying the legislation have this to say on the subject: “The Government encourages operators to set up and publicise a designated email address for this purpose as a matter of good practice, which we encourage complainants to use. Operators may also wish to provide an online form that complainants can use to submit a Notice of Complaint”.

Section 18.2

Optional element.

How can users report unlawful and unwanted materials and activities on the website?

Section 19 – Limited warranties

Section 19.1

Optional element.

Section 19.2

Optional element.

Section 20 – 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.

The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated.

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 be drafted as an independent term, and be numbered separately from the other provisions.

It may improve the chances of a limitation or exclusion of liability being found to be enforceable if the party seeking to rely upon it specifically drew it to the attention of the other party before the contract was entered into.

Exclusions and limitations of liability in UK contracts are primarily regulated by the Unfair Contract Terms Act 1977 (“UCTA”).

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.

If you wish to try to limit/exclude for liability in respect of reckless, deliberate, personal and/or repudiatory breaches of contract, you should specify this in relation to the relevant provision (for example, using the following wording: “The limitations and exclusions of liability in this Clause [number] will apply whether or not the liability in question arises out of any reckless, deliberate, personal and/or repudiatory conduct or breach of contract”). In many circumstances, however, the courts will find these types of limitations and exclusions to be unenforceable.

Somewhat different rules apply to limitations of liability in contracts with consumers, and these provisions should not be used in relation to such contracts.

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 20.1

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 20.3

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 20.5

Optional element.

Section 20.6

Optional element.

Section 20.7

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.

Section 20.8

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

Section 20.9

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

(a) – What monetary amount should be used in the liability cap?

(b) – What floating amount should be used in the liability cap?

Liability caps may be unenforceable in practice.

Section 21 – Indemnity

Optional element.

Section 22 – Breaches of these terms and conditions

Section 22.1

(g) – Will account suspension or deletion be a possibility here?

Section 22.2

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 23 – Third party websites

Optional element.

Section 24 – 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 – so, you must not use the ® symbol in relation to unregistered trade marks.

Section 24.1

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

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

Section 24.2

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

Section 25 – Competitions

Will or might you run any competitions on or in relation to the website?

Any competitions should be governed by a separate set of terms and conditions.

Section 26 – 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 26.2

Will website users be notified of changes to the document?

Section 26.3

Will registered users be required to consent to variations?

Section 29 – 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 30 – Entire agreement

Section 30.1

What other documents govern the use of the website?

Section 31 – 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 31.1

Which law should govern the document?

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.

Section 31.2

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?

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

Section 32 – 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 32.2

What language or languages will the document be available in?

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

Section 32.3

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

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?

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”.

Section 32.4

Is the website operator subject to an authorisation scheme (e.g. under financial services legislation)?

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

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”.

Section 32.5

Is the service provider a member of a regulated profession (e.g. solicitors)?

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?

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”.

Section 32.6

Does the website operator subscribe to any codes of conduct?

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

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”.

Section 32.7

Is the website operator registered for VAT?

What is the website operator’s VAT number?

Section 33 – 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 33.1

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

Section 33.2

Is the website operator a company?

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

Section 33.3

Optional element.

Where is the website operator’s head office or principal place of business?

Section 33.4

Optional element.

Will a contact form be included in the website? Do you wish to specify that contact may be made by telephone? 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.