New Website Terms of Use & Terms of Sale

November 2016

The term digital content is a broad one. It can refer to something as small as a piece of clipart or as large as a movie. Simply put, if something exists as data in digital form, it is basically digital content. Consequently, if you sell such content to consumers, it is important to comply with the law applicable to it.

As a feature of consumer law, digital content is quite new. It was recognised as a distinct category in the 2015 Consumer Rights Act and is subject to very similar consumer protection rules as physical goods. Digital content must be of satisfactory quality, it must be fit for purpose, and it must be as described. If it isn’t, similar remedies apply including repair, replacement, price reductions, and refunds.

When selling digital content online, it is important to be aware of such requirements and to make sure your customers are aware of their rights. In addition to the rights and remedies outlined above, consumers buying online may benefit from the 14-day cooling off period required by the 2013 Consumer Contracts Regulations. Digital content differs from physical goods in many ways, however; not least in that once you have it, it is very difficult for anyone to ensure that you haven’t made a copy. Technical measures such as digital rights management (“DRM”) can help, but can often be circumvented. The 14-day cooling off period can therefore be limited for digital content so that, provided they have been warned and have acknowledged the same, the customer’s right to change their mind under the cooling off period can be revoked as soon as the digital content is provided to them.

As well as making consumers aware of their rights (and their obligations) when buying online, it is important to inform them of their rights and obligations when using the website itself. It is therefore vital to have terms of use in place in addition to terms of sale and other important documents such as privacy and cookie policies. When combined, the various elements making up your terms and conditions should cover all angles of your relationship with your customers and should aim to do so in a way that is easy to understand while still being informative.

Updated Digital Content Website Terms

Simply-Docs has now produced two new templates to replace our old Information Provider website terms and conditions. Now referring to ‘digital content’, these terms remain applicable to websites providing information but can now also be applied to a broad range of other digital content. An important part of the change involves repurposing of the documents so that one now operates as website terms of use while the other operates as terms of sale. Both templates are therefore now required and have been designed to work together. If you have previously used TR.WEB.TC.06, TR.WEB.TC.06a, TR.WEB.TC.07, or TR.WEB.TC.07a, both updated templates will now be of use to you and should be used as pairs (i.e. 06 + 07 or 06a + 07a).

The Terms of Use templates address all important issues relating to users’ use of your website including IP rights, linking and sharing, user content and acceptable usage, accounts, data protection, privacy, and liability. As is common practice with website terms of use, users are deemed to have accepted them upon using the site. It is therefore important to place a prominent link, drawing your users’ attention to the terms. Express acceptance can also be required as a part of a sign-up process.

The Terms of Sale templates govern the contract between you and your customers for the sale of digital content. At present, the terms are designed for digital content provided on a subscription basis. A one-off transaction variant is currently in progress and will be available soon. Key elements are covered in detail including the formation of contracts, pricing and payment, and consumers’ legal rights (including cancellation rights ranging from those arising out of problems with your digital content to the simple, no-fault cancellation of a recurring subscription).

If you sell any kind of digital content online, it has never been more important to make sure that both parties to the transaction fully understand their respective rights and obligations, so don’t delay. Download your new digital content e-commerce terms and conditions today!

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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