Guide to Writing Website Terms and Conditions in Singapore
Website Terms and Conditions: What are They and Why are They Important?
The functions of the Website T&Cs include:
- Granting users the right to use the website’s materials;
- Establishing what is considered to be acceptable use by the website operator;
- Limiting statements of fact and promises made by the website operator as to, for example, the accuracy of website content; and
- Helping the operator to disclaim liabilities.
Website T&Cs often go hand in hand with privacy policies, which state how the website operator will handle website users’ personal data.
The following are a few important clauses you may include when drafting your Website T&Cs:
The Website T&Cs is essentially a contract, so its enforceability under Singapore’s legal system is governed by basic contractual principles such as offer and acceptance.
Briefly, an offer (made by the website operator) is an expression of willingness to be bound by certain specified terms upon the unqualified acceptance (accepting without conditions) of these terms by the person to whom the offer is made (website user).
Many websites employ either a browse-wrap or a click-wrap method to facilitate this offer and acceptance process:
Browse-wraps can take the form of a hyperlink at the bottom of the web page that redirects the user to the Website T&Cs. Acceptance to the Website T&Cs is given through the reader’s use of the website.
However, depending on the location and labelling of the hyperlink amidst the broader layout and design of the website, browse-wraps may be insufficient to give rise to notice to users which can in turn adversely affect the enforceability of browse-wraps.
In general, the presence of a hyperlink itself at the bottom of the webpage is considered insufficient. The hyperlink must be prominent and close to the button that the user will click to proceed to use the site or to conclude a transaction.
Click-wraps may require the user to activate a checkbox that is accompanied by a phrase such as “I agree to the terms and conditions”.
Another type of click-wrap involves providing the user with a button that is labelled “sign up” along with a notification that states, by clicking on the button, he or she agrees to the Website T&Cs.
This clause grants the user a licence to use the content and services offered through the website, and may go on to qualify the nature and scope of the licence. For example, such licences may be limited, non-exclusive and non-transferable.
- Limited licence: the licensor (website operator) grants the licensee (website user) some of the rights which the website owner possesses over the website, subject to various limitations on their use. As a website owner, you would generally have full control over your website and may deal with it as you see fit. It is important for you to lay down some rules to prohibit user behaviour that may damage or disable the website and interfere with other parties’ use of the website. Please refer to the section on “acceptable use” (below) for an example of restrictions that are imposed on website users, with respect to their use of a website.
- Non-exclusive licence: the website operator grants the website user the right to use the website, but the website operator remains free to use the website and to allow any number of other website users to also access the same website. On the other hand, an “exclusive” licence over a website means that no one other than the named user (not even the website operator himself) can use the website.
- Non-transferable licence: the website user has no right to transfer his licence to another party.
3. Acceptable use
An “acceptable use” clause is important because the website operator can use it to restrict the ways in which the website may be used and set guidelines as to how the website should be used.
For example, the clause may prohibit the user from:
- Using the website for any unlawful purposes
- Damaging, disabling or otherwise impairing the website, or interfering with another party’s use of the website
- Reproducing or reselling any part of the website in breach of copyright (see below) or in contravention of the Website T&Cs
4. Copyright, trademarks and other intellectual property
This clause informs the users of your website that the contents of your website are protected by copyright.
It also works in conjunction with the “licence” and “acceptable use” clauses (discussed above) to delineate the rights which are granted to your website users with respect to the content and services provided through your website.
For example, this clause may state that:
- The contents of the website are protected by copyright
- Use of the website does not grant the user ownership of any intellectual property rights
5. Disclaimer of liability
A disclaimer of liability may protect you from liabilities that may arise in relation to your website.
For example, should a user rely on your website’s content and suffer some monetary losses because the information turned out to be inaccurate, the website operator would be wise to disclaim any liability to the user.
Generally, disclaimers in a contract governed by Singapore law must be drafted in accordance with the provisions of the Unfair Contract Terms Act (UCTA).
The UCTA stipulates that the terms in a disclaimer must be fair and reasonable, having regard to the circumstances which were, or ought reasonably to have been, known to the parties when the contract was made.
For example, this clause may state that, to the maximum extent permitted by law, the website operator and its officer expressly excludes all liability to the website user.
For more information you may refer our article on writing a disclaimer.
A termination clause would provide you with a right to terminate the user’s licence to use your website.
The right of termination may be drafted such that you are given sole discretion to effect such termination. It allows you to police your website and ban errant users from any further usage of your website.
For example, this clause may state that the website operator reserves the right, without notice and in its sole discretion, to terminate the user’s licence to use the website, and to block or prevent his or her access to, and use of the website.
7. Governing law and jurisdiction
A “governing law” or “choice of law” clause specifies the legal system, such as Singapore law, within which the Website T&Cs will be interpreted.
A “jurisdiction clause” specifies the court, which would adjudge any dispute relating to the Website T&Cs.
Since it is possible that the website operator and users are located in different countries, which may have different laws and regulations, it may be unclear which legal system governs the Website T&Cs.
If the governing law is not expressly provided for, costly and time-consuming preliminary court trials may be necessary to determine the governing law.
This may especially be a challenge where there are disputes with regard to the Website T&Cs and, the parties may have to attend additional court trials to determine whether the dispute should be heard in the courts of one country or another.
In particular, lawyers in the various jurisdictions would have to be engaged, and relevant court processes in each jurisdiction would have to be complied with.
Therefore, it is important to choose a court and provide in your Website T&Cs for the exclusive jurisdiction of this court to settle any disputes.
“Exclusive jurisdiction” means that only the specified courts will have jurisdiction to hear disputes, and “non-exclusive jurisdiction” means the specified courts can hear disputes but the parties are not prevented from bringing their case to other courts as well.
For example, a governing law clause may state that the Website T&Cs are to be governed by and interpreted in accordance with the laws of Singapore. It may also provide that the courts of Singapore have exclusive jurisdiction to settle any dispute in connection with the Website T&Cs.
While it is useful to have a general understanding of Website T&Cs, you may wish to seek legal advice to ensure that terms and conditions of your website specifically addresses any concerns you may have on matters such as protection of the intellectual property on your website, or preventing abuse of your website.
Feel free to get in touch with one of our corporate lawyers should you need any assistance in this regard.
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