Introduction:
Website User Agreement (WUA) or Terms and Conditions (T&Cs) stipulates the rights and obligations of users and website owners (i.e., your company); protects the interests of the website owners; limits legal obligations of the owner; sets out dispute resolution mechanisms; provides for indemnities to the company, Intellectual Property (IP) rights, the acceptable use of the site, and a host of other important things.
As internet users, we may have at one point or the other come across WUAs. However only a handful of website users actually take their time to read, study and understand the T&Cs of a WUA. It is extremely important to painstakingly study and understand the T&Cs of a WUA before signing up for the use of a website.
According to Tim Sandle,1 citing ProPrivacy.com, ".only 1 percent of technology users in a social experiment actually read the terms and conditions." However according to Sandle, not many admitted this fact, as the survey showed that about 70% of the people surveyed lied in the survey by claiming that they had read the T&Cs, and as high as 33% claiming that they had read it thoroughly.2
The reluctance to read the T&Cs is often due to the lengthy literature of the T&Cs of such user agreements which gives online users a bore. In some cases, users just scan through the T&Cs without really reading and then click on the acceptance tab. It is important to note however, that reading the T&Cs of a WUA would give the end user relevant information about the various aspects of use of the website such as purchase, sale, delivery, dispute resolution and so on.
A wide range of website users have reported experiences of serious problems arising from their ignorance of the T&Cs of a website before using it and therefore do not take any action or even contact the operators of the website about the problem. For instance, it was reported in an article with the title "'Click to Agree With What? No one reads terms of Service, Studies confirm" published on the Guardian.com on third March 2017 by David Berreby, it was reported that a wide variety of college students who signed up for a new social network, namedrop.com by tapping on big green "Join" button to become members of NameDrop, had according to paragraph 2.3.1 of the terms of service agreed to give NameDrop their future first-born children. This however sounds ridiculous but is a serious issue and goes a long way to affirm that a large proportion of website users do not read the T&Cs and therefore, they are also not likely to undertake any action against the website operators/owners should any issues arise.
Before signing up for a user agreement, here are some important questions to answer.
- What am I about to commit myself to?
- What are my obligations? and,
- What penalties apply if I fail to meet those obligations?
The T&Cs of any contract clearly state those things that will regulate the business relationship between the relevant parties and create legally binding obligations between them. Kym Butler of Butlers Business and Law stated in his book, "Profit Boosters for Business";3 that 'If you are locking your contracts away then you are failing to properly monitor agreements that may have serious financial penalties attached if legal obligations are not met.
It is important to note that website user T&Cs provide the basis for any contractual arrangement with respect to the use of a website which is voluntarily entered into by two or more parties. If a user is not conversant with the T&Cs of a WUA, they are not in a position to determine whether or not those T&Cs favour them. This notwithstanding, failure to meet those T&Cs exposes the user to legally enforceable liabilities against their person and their personal assets. Unfortunately, only a handful read the T&Cs to which they contractually agree to adhere strictly to.
If you want to give yourself the best chance to succeed in any contractual arrangement you need to not only read the terms and conditions but to also ensure that they are written in your favour wherever possible. You want to be able to trade to your own advantage. Terms and Conditions are the foundations that determine the obligations, liabilities and potential benefits of any trade and not just the use of a website. If you are unsure or in doubt about the terms and conditions of a contractual arrangement with regards to a website you intend to sign up for, it would be best to consult a lawyer who specializes in the area in which you are working.
There is no doubt that some website T&Cs are lengthy indeed, justifying why many consumers/users skip over them when making online transactions. However, reading a supplier's terms is not just important for consumers to know where they stand; but much more important for small businesses seeking to be in profitable business.
Why Small Businesses Should Read Terms and Conditions
The same "do I have to?" attitude to reading terms and conditions can sometimes be heard among small business owners. T&Cs are very important when it comes to small business contracts and there are many benefits to be derived from reading them and understanding their implications.
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Footnotes
1 Tim Sandle, "Report Finds only 1 Percent Reads 'Terms & Conditions'" Digital Journal, [January 29, 2020] https://www.digitaljournal.com/business/report-finds-only-1-percent-reads-terms-conditions/article/566127#:~:text=The%20group%20found%20that%20only,have%20%E2%80%9Cread%20it%20thoroughly.%E2%80%9D
2 1 ibid, para. 6
3 Profit Boosters for Business By; Kym Butler of Butlers Business and Law;
John Ibe and Henrietta Ibeawuchi are Senior Associate and formerly Executive Associate respectively at Alliance Law Firm.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
