Website Terms of Use Example For Free - Free Essay Example

Sample details Pages: 8 Words: 2378 Downloads: 8 Date added: 2017/06/26 Category Law Essay Type Research paper Did you like this example? Website Terms of Use Multiple factors have fueled the growth of e-commerce in the country today. The robust growth of internet penetration, rising mobile and smartphone subscriber base have contributed to changing the buying patterns, consumer preferences, shopping experience and the way companies are driving sales today. According to a study conducted by Forrester Research, shoppers in Metropolitan India are driving e-commerce today. Don’t waste time! Our writers will create an original "Website Terms of Use Example For Free" essay for you Create order Some of the key services availed online today fall in the areas of travel, Books and Publications, Music, Consumer Electronics, Lifestyle Apparel. The change in the landscape has also brought in newer players in the value chain, increasing the complexity of doing business today. The nature of players competing in product segments have changed considerably. Online trading platforms, Technology providers, Banks and NBFCà ¢Ã¢â€š ¬Ã¢â€ž ¢s are the new entrants to the value chain. However with the development of e-business, a host of legal challenges have sprung up for consumers as well as businesses operating in the e-commerce ecosystem. Website terms of use aka E-Contracts or online contracts are synonymous with the Terms and Conditions found in legal contracts drawn between the buyer and seller. The complexity of e-contracts increases with online trading platforms come into the fray. Online trading platforms are intermediaries giving an opportunity for buyers and sellers to m eet and conduct business transactions. They are enablers of trade and commercial transactions, who enter into tie-upà ¢Ã¢â€š ¬Ã¢â€ž ¢s with technology providers, payment platforms, manufacturers/wholesalers to offer a wide variety of goods and services to consumers at the click of a key. The absence of any regulating body to protect consumers in online transactions is increasingly felt as the size of the online market place increases. The Consumer Protection Act of 1986 oversees the association between shoppers and service/goods providers in India. Redressal of consumer grievances for online transactions take place through Consumer Forums which are constituted at the District level. A special adjudicating forum has been constituted under the CPA to impose sanctions under the Act. Liability under Consumer Protection act rises only when deficiency of services, defects in goods and unfair trade practices are established clearly. But the act limits the liability to the extent of the value of the transaction or to a cap as defined by the service provider. Moreover, online platforms which offer only a platform and that too at no cost to the consumer do not attract liability under the Consumer Protection Act. Some of the common issues faced by consumers in India on account of the e-commerce model are Data Confidentiality Privacy, Security, Conditions of Use aka Terms and conditions, Grievance Handling/ Dispute Resolution, Fraud, Fees and Charges and Jurisdiction. These issues are currently governed under different statutes and Acts. Existence of a valid contract forms the crux of any transaction including an e-commerce transaction. In India, e-contracts like all other contracts are governed by the basic principles governing contracts in India, i.e. the Indian Contract Act, 1872 Click wrap, Browse wrap and Shrink Wrap contracts are some of the common form of e-contracts. The key differentiators between paper contracts and the different types of e-contracts arises from the way the terms and conditions are structured and administered for consumerà ¢Ã¢â€š ¬Ã¢â€ž ¢s acceptance. Click wrap contracts typically have the terms and conditions shown in a scroll box for the contracting party or the user to view the conditions and an à ¢Ã¢â€š ¬Ã…“I accept the terms and conditionsà ¢Ã¢â€š ¬Ã‚  as a separate tab. A browse wrap agreement binds the contracting party or the user by merely browsing the page or the website. (à ¢Ã¢â€š ¬Ã…“Indian Contract Actà ¢Ã¢â€š ¬Ã‚ ) which inter alia mandate certain pre-requisites for a valid contract such as free consent and lawful consideration. What needs to be examined is how these requirements of the Indian Contract Act would be fulfilled in relation to e-contracts. In this context it is important to note that the Information Technology Act, 2000 (à ¢Ã¢â€š ¬Ã…“IT Actà ¢Ã¢â€š ¬Ã‚ ) provides fortification for the validity of e-contracts. Some of the important requirements of a valid contract under the Indian Contract Act are as follows: The contract should be entered into with the free consent of the contracting parties; There should be lawful consideration for the contract The parties should be competent to contract; The object of the contract should be lawful Unless expressly prohibited under any statute, e-contracts like click-wrap agreements would be enforceable and valid if the requirements of a valid contract as per the Indian Contract Act are fulfilled. Consequently the terms and conditions which are associated with an e-commerce platform are of utmost importance in determining and ensuring that e-commerce transactions meet with the requirements of a valid contract. The IT Act, however, is not applicable in relation to negotiable instruments, power of attorneys, trust, wills contracts for sale or conveyance of immovable property Signature Requirements There is no requirement under the Indian Contract Act to have written contracts physically signed. However, specific statues do contain signature requirements. For instance the Indian Copyright Act, 1957 states that an assignment of copyright needs to be signed by the assignor. In such cases the IT Act equates electronic signature with physical signatures. An electronic signa ture is supposed to be issued by the competent authorities under the IT Act. However till the date of this paper, the Central Government has not notified any electronic signatures. Contracts with Minors The very nature of e-commerce is that is virtually impossible to check the age of anyone who is transacting online. This may pose problems and liabilities for e-commerce platforms. The position under Indian law is that a minor is not competent to enter into a contract and such a contract is not enforceable against the minor. The age of majority is 18 years in India. Stamping Requirements Every instrument under which rights are created or transferred needs to be stamped under the specific stamp duty legislations enacted by different states (provinces) in India. An instrument that is not appropriately stamped may not be admissible as evidence before a competent authority unless the requisite stamp duty and the prescribed penalty have been paid. In some instances criminal li ability is associated with intentional evasion of stamp duty. However, the manner of paying stamp duty as contemplated under the stamp laws is applicable in case of physical documents and is not feasible in cases of e-contracts. Whether Standard-form Online Contracts are Unconscionable In general there is little or no scope for negotiations to be held between e-commerce platforms and customers regarding the terms of the online contracts. The question then arises whether such standard form contracts are to be considered unconscionable and may be struck down by the courts. In India there does not seem to be well developed jurisprudence on the issue of whether standard form online agreements are unconscionable. However, Indian laws and Indian courts have dealt with instances where terms of contracts (including standard form contracts) were negotiated between parties in unequal bargaining positions. Certain provisions under the Indian Contract Act deal with the unconscionable c ontracts such as when the consideration in the contract or the object of the contract is opposed to public policy. If the consideration or object of the contract is opposed to public policy, then the contract itself cannot be valid. In case of unconscionable contracts, the courts can put a burden on the person in the dominant position to prove that the contract was not induced by undue influence. The Indian Contract Act does not define the expression à ¢Ã¢â€š ¬Ã‹Å"public policyà ¢Ã¢â€š ¬Ã¢â€ž ¢ or what is meant by being à ¢Ã¢â€š ¬Ã‹Å"opposed to public policy. However this section allows the court to hold clauses opposed to public policy as void. Section 16(3) of the Contract Act provides that where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Section 23 of the Contract Act provides that the consideration or object of any agreement is unlawful when It is forbidden by law, or Is of such a nature that if permitted, it would defeat the provisions of any law; or Is fraudulent, or Involves or implies injury to the person or property of another, or The Court regards it as immoral or opposed to public policy. In the case of LIC India v. Consumer Education Research Center 22 the Supreme Court interpreted an insurance policy issued by Life Insurance Corporation of India by bringing in certain elements of public purpose. The court declared certain term clauses in the policy, pertaining to restricting the benefit of the policy only to those people employed in the Government as void under article 14 of the Constitution. The Court noted that à ¢Ã¢â€š ¬Ã…“In dotted line contracts there would be no occasion for a weaker party to bargain as to assume to have equal bargaining power. He has either to accept or leave the service or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forgo the service foreverà ¢Ã¢â€š ¬Ã‚  In the case of Lily White v R Munuswami 23 the court held that a limitation of liability clause printed on the back of a bill issued by a laundry which restricted the liability of the laundry to 50% of the ma rket price of the goods in case of loss was against public policy and therefore void. In light of the above, it is extremely important to have well thought out terms which form the online contracts and ensure that adequate opportunity is provided to the customers to familiarize themselves with the terms thereof. Online Platforms like Flipkart, Naaptol, Jabong etc are known to have very detailed and robust Conditions of use which limits their liability in transactions between consumers and service/goods providers. Their website terms of use typically covers, copy right infringement, trademarks, payment security, privacy policies at length and clearly indemnifies them from any cost, damages or liability arising out of the actions of the contracting parties. Privacy of Informationà ¢Ã¢â€š ¬Ã¢â€ž ¢ Provision of Contract terms such as guarantees/warranties, refunds, dispute settlement, hidden costs and misleading information, phishing, spamming. For an e-commerce platform , it is almost difficult to complete any online transaction without collecting some form of personal information of the users such as details about their identity and financial information. Apart from the collection of primary data from the users, e-commerce platforms may also collect a variety of other indirect information such as usersà ¢Ã¢â€š ¬Ã¢â€ž ¢ personal choices and preferences and patterns of search. Hence, an important consideration for every e-commerce platform is to maintain the privacy of its users. Two primary concerns that a user of e-commerce platforms would have are: Unauthorized access to personal information Misuse of such personal information. Historically, the concept of privacy and data protection were not addressed in any Indian legislation. In the absence of a specific legislation, the Supreme Court of India in the cases of Kharak Singh v State of UP 27 and Peoples Union of Civil Liberties v. the Union of India 28 recognized the à ¢Ã¢â€š ¬Ã…“right to privacyà ¢Ã¢â€š ¬Ã‚  as a subset of the larger à ¢Ã¢â€š ¬Ã…“right to life and personal libertyà ¢Ã¢â€š ¬Ã‚  under Article 21 of the Constitution of India. However a right under the Constitution can be exercised only against any government action. Non-state initiated violations of privacy may be dealt with under principles of torts such as defamation, trespass and breach of confidence as applicable. The IT Act deals with the concept of violation of privacy in a limited sense; it provides that the privacy of a person is deemed to be violated where images of her private body areas are captured, published or transmitted without her consent in circumstances where she would have had a reasonable expectation of privacy 29 and prescribes a punishment of imprisonment of up to 3 years and/or fine of up to INR 2 lakhs. Data Protection India has in the year 2011 notified rules under Section 43A of the IT Act titled à ¢Ã¢â€š ¬Ã…“Reasonable practices and procedures and sensitive personal data or information Rules, 2011à ¢Ã¢â€š ¬Ã‚  which provide a framework for the protection of data in India (à ¢Ã¢â€š ¬Ã…“Data Protection Rulesà ¢Ã¢â€š ¬Ã‚ ). Kinds of Information covered under the Data Protection Rules There are basically two categories of information which are covered under the IT Act which need to be considered with respect to data protection. Personal information (à ¢Ã¢â€š ¬Ã…“PIà ¢Ã¢â€š ¬Ã‚ ) which is defined as any information that relates to a natural person, which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identify ing such person. Sensitive personal data or information (à ¢Ã¢â€š ¬Ã…“SPDIà ¢Ã¢â€š ¬Ã‚ ) which is defined means such PI of a person which consists of Password Financial information such as Bank account or credit card or debit card or other payment instrument details physical, physiological and mental health condition; sexual orientation; medical records and history; Biometric information. The Data Protection Rules, inter alia, set out compliances which to protect SPDI in the electronic medium by a corporate entity which possess, deals with or handles such SPDI such as: The need to have a privacy policy in accordance with the parameters set out in the Data Protection Rules; The need to obtain consent in a specific manner from the provider of SPDI; The need to provide an opt out option to the provider of SPDI; The need to maintain reasonable security practices and procedures in accordance with the requirements of the Data Protection Rules (discussed below). The IT Act prescribes penalties for wrongful disclosure of PI by way of imprisonment up to three years and/ or a fine up to INR 5 lakhs. The IT Act also prescribes compensation to be awarded by companies that are negligent in the protection of SPDI of any person. Security of Systems Security over the Internet is of immense importance to promote e-commerce. Since e-commerce companies keep sensitive information (including SPDI) on their servers, e-commerce companies must ensure that they have adequate security measures to safeguard their systems from any unauthorized intrusion. A company could face security threats externally as well as internally. Externally, the company could face problems from hackers, viruses and Trojan horses. Internally, the company must ensure security against its technical staff and employees.