Does your website address the transfer of liability in your online contracts?
The value and benefit of your website being compliant is often overlooked. Online contracts, also known as electronic contracts or e-contracts, refer to the agreements that are created and signed electronically which do not involve the use of paper.
1CAN I CONTRACT ON-LINE, VIA MY WEBSITE?
Yes
2WHAT TYPE OF CONTRACTS DO YOU FIND ON-LINE?
a. Browse wrap agreement:
The question of obtaining consent in your online contracts can be answered in different ways. For example a browse wrap agreement is a kind of search cover agreement that is meant to be binding on the contracting parties through the use of a website. A browse wrap would be a statement that indicates that the use of the website would be one’s acceptance of the terms and conditions associated to such use. See example:
b.Click wrap agreement:
A clickwrap agreement refers to the process wherein the user (often the consumer) consents/ agrees to the terms by either (1) clicking on an icon, for instance, the icon titled “I agree” or “Accept” after presenting to the user other terms and conditions, or (2) affirmatively acknowledging the agreement before proceeding with the use of the website. See example:
The question of obtaining consent in your online contracts can be answered in different ways. For example a browse wrap agreement is a kind of search cover agreement that is meant to be binding on the contracting parties through the use of a website. A browse wrap would be a statement that indicates that the use of the website would be one’s acceptance of the terms and conditions associated to such use. See example:
b.Click wrap agreement:
A clickwrap agreement refers to the process wherein the user (often the consumer) consents/ agrees to the terms by either (1) clicking on an icon, for instance, the icon titled “I agree” or “Accept” after presenting to the user other terms and conditions, or (2) affirmatively acknowledging the agreement before proceeding with the use of the website. See example:
3HAVE YOU ADDESSED THE CONTRACTUAL REQUIREMENTS, APPROPRIATELY, i.e. OFFER, ACCEPTANCE, COMMUNICATION OF ACCEPTANCE, IN YOUR ONLINE CONTRACTS?
The following contractual requirements apply:
a. consent or a “meeting of the minds” must take place;
b. the contracting parties must have the legal capacity to contract (e.g. above the age of 18 years); and
c. there must be a clear written offer (terms and conditions) and a clear acceptance of the offer.
An offer can only be considered valid after it is communicated to the customer. Acceptance of the offer must be communicated to the business (see browse wrap and click wrap agreements above). The communication of the acceptance of the offer should be absolute.
a. consent or a “meeting of the minds” must take place;
b. the contracting parties must have the legal capacity to contract (e.g. above the age of 18 years); and
c. there must be a clear written offer (terms and conditions) and a clear acceptance of the offer.
An offer can only be considered valid after it is communicated to the customer. Acceptance of the offer must be communicated to the business (see browse wrap and click wrap agreements above). The communication of the acceptance of the offer should be absolute.
4HOW TO EVALUATE THE RISKS IN ONLINE CONTRACTS?
There are various ways by which risks inherent in online contracts can be evaluated and properly addressed and mitigated, for example:
(i) by creating transparency – transparency ensures that all the contracting parties are on the same page; or
(ii) by reviewing the contract – this gives the parties the opportunity to address any unclear terms contained in the agreement.
(i) by creating transparency – transparency ensures that all the contracting parties are on the same page; or
(ii) by reviewing the contract – this gives the parties the opportunity to address any unclear terms contained in the agreement.
5HOW DO I SAFELY CONTRACT ONLINE?
Contact us at dataprotection@dkvg.co.za to chat about your rights and liabilities in online contract
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