Whether it’s suggested by their website developer as a viable option or they take the initiative themselves, many online business owners don’t see the harm in copying the ‘Terms and Conditions’ from a website similar to their own.
Here is why you shouldn’t do it:
It is illegal: Copying someone else’s Terms and Conditions is copyright infringement, which is illegal, similar to copying any other kind of content or work without the necessary authorization from the author. We have even seen some organisations that have copied certain Terms and Conditions without even taking out the other company’s name.
Local laws apply. Certain local laws, such as the Electronic Communications and Transactions Act 25 of 2002 (“ECT Act”), will apply to your online business as a South African business, especially when targeting consumers in South Africa. E-commerce sites, for example, need to address the following:
If your website’s Terms and Conditions don’t take into consideration the relevant laws, your business may face severe legal, financial and reputational harm. For example, if you fail to comply with the provisions of the ECT Act in terms of items 3 and 5 above, the consumer may cancel the transaction within 14 days of receiving the goods or services under the transaction. If a transaction is cancelled as a result of the aforesaid, the consumer must return the performance he/she received or, where applicable, cease using the services performed; and you (your business) must refund all payments made by the consumer minus the direct cost of returning the goods.
Furthermore, if you do business with users outside the borders of South Africa and you do not address jurisdiction or applicable law, your contract may be subject to foreign law and a jurisdiction far-far away from your business…this could result in a costly exercise to resolve a dispute.
So, before copying the Terms and Conditions of another website, ask yourself the question whether it is worth the potential damages or reputational harm it may cost your business.
For assistance on drafting appropriate Terms and Conditions for your online business, kindly contact our IT & IP department.
Website compliance audit
At De Klerk & Van Gend, it is important for us to ensure that our clients’ websites are compliant. To encourage this, we will perform a free WebSite Compliance audit (valued at R2500) for each client that follows these simple steps:
Submit the email to us.
IMPORTANT: We will commence with the Website Compliance audit for your business after we have received 2 (two) emails from your business email address (i.e. your name@[your business website domain].com/co.za etc.] within 2 months subsequent to reading any two of our WebSite Compliance campaign articles and sending us the email as requested above.
Author: Gerrie van Gaalen (IT&IP Department)
This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.