How do I know if I am selling B2B or B2C?
The legal definitions dividing B2B and B2C contracts vary a little from context to context, but arguably the most important for UK ecommerce websites are those set out in the Consumer Contracts (Information etc) Regulations 2013, which contain the law on distance selling cancellation rights.
Those Regulations apply (inter alia) to distance contracts, defined as contracts:
"concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded".
Consumer means:
"an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession".
Trader means:
"a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf".
I'm setting up an ecommerce store selling goods to consumers. Do I need to buy terms of use as well as terms of sale?
This terms of sale document regulates the legal relationship between a seller and a buyer. However, there will also be a legal relationship between a web store operator and a casual visitor to the website. Whilst all buyers will be visitors, not all visitors will be buyers, and it therefore makes sense to keep the terms and conditions relating to the use of the website distinct from the terms and conditions relating to the sale of products. That is how our documents are structured. So, yes - you do need terms of use as well.
Should these terms of sale be used in respect of sales within the EU but outside the UK?
The law governing ecommerce in the UK is in significant part derived from EU law. The EU has partially harmonised ecommerce law across the member states. It follows that using English law legal documentation should ensure a measure of compliance with the law in other EU jurisdictions. However, not all of the relevant laws have been harmonised, and in many cases harmonisation is inconsistent. It follows that using documentation that complies with English law will not guarantee compliance with the laws of other member states.
Where you are selling to consumers, there are many areas where a state will apply its own laws, irrespective of the governing law clause in your T&Cs. Unfortunately (for non-lawyers) the only way to ensure that your T&Cs comply with the law in a particular jurisdiction is to take advice from a competent lawyer qualified in the relevant jurisdiction.
Can I use this template for selling electronic products?
No. This is designed for use in relation to physical goods. Electronic goods involve the provision of a service and usually a licence, and are therefore quite different from a legal perspective. See our download agreements for templates covering electronic products.
Does this terms and conditions of sale template include a product liability indemnity protecting the customer?
No. This template has been designed with the protection of the seller primarily in mind.
What are the terms of the standard returns policy included with the B2B version of this template?
Certain warranties are set out in the terms and conditions of sale: that the products will comply with specification, and that they will be free from defects in materials and workmanship.
If the customer believes that there has been a breach of one of these warranties, then the customer should contact the supplier and arrange for the return of the products. If the supplier agrees that there has been a breach of warranty, then the the customer is entitled to a replacement product (or a refund if no replacement is available or the supplier agrees).
These are of course very basic rights. If you want to offer business customers more generous returns rights, see our template returns policies.
What are the differences between B2C and B2B online contracts, and how are these differences reflected in the B2B + B2C template?
From a lawyer's perspective, the crucial difference between these classes of customer is the special legislative protection afforded to consumers. Consumer protection legislation regulates what must be included in contracts with consumers, and what must not. For example, the Unfair Contract Terms Act 1977 prohibits unreasonable exclusion clauses in contract with consumers. The Unfair Terms in Consumer Contracts Regulations 1999 prohibit unfair terms generally, and include a list of terms which are likely to be considered to be unfair. In the case of sales at a distance, including website sales, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 require that consumers be entitled to cancel contracts with traders at any time within the period of 14 days following the receipt of the products by the consumer. Business customers have no equivalent right.
Because of these legislative interventions in B2C contracts, a legal document that seeks to cover sales to both types of customer should be drafted to ensure that: (i) consumer rights are not improperly abridged; and (ii) business customers are not, without good reason, granted rights that do not need to be granted.
The mixed template deals with this issue by specifying that some clauses only apply to consumers, while others only apply to businesses. For example, there is a special section dealing with the right of cancellation, but the application of the section is expressly limited to consumers as defined in the 2013 regulations. Similarly, there is a special section dealing with credit accounts, which provides that only business customers may be allowed credit to purchase goods, subject to agreed credit limits.
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