Presentation on theme: "Incorporation of Terms. The Importance of Incorporation of Terms 1.The terms become binding to the parties 2.No other terms can be introduced to the contract."— Presentation transcript:
Incorporation of Terms
The Importance of Incorporation of Terms 1.The terms become binding to the parties 2.No other terms can be introduced to the contract after they are incorporated.
The problem in the E- environment is that usually the terms are not in the same place to where the contract is formed
The Types of Incorporation 1.Incorporation by Notice 2.Incorporation by Signature
Incorporation by Notice The Website Owner will place a notice sating the transaction is: ‘subject to Terms’ Is this legal? Are the terms considered binding?
This is legal and the terms are binding if 1.The terms are easily accessible (e.g. Provide a working Hyperlink) 2.The statement is given next to or near to where the consumer agrees to the transaction 3.If the terms do not include any term that excludes any of the seller duties imposed by the law, or, include a waiver of any right given by the law to the consumer.
If there is any term that might affect the consumers interests, this term must by clearly given to the consumer and must be placed next to the ‘terms & Conditions statement”. Only the courts can decide which terms are invalid, that is why website owners and consumers have to be constantly legally educated and the Regulations have to be constantly enforced.
Incorporation by Signature Is where the website owner places the ‘terms & conditions’ and the consumer has to press a button (e.g. I Agree) to enable the consumer to proceed in the transaction. This method is legal as this is considered a signature (we will study later); however, the same will apply regarding terms which effect consumer rights as we have mentioned before.
Digital Products are products which can only be viewed or used on a electronic device (computer or mobile phone)
The Problem regarding Digital products is: It is not clear if they are Goods or Services They do not easily fit the Definition of Goods provided by Law, and if they are Services they leave the consumer to the mercy of merchants
If they are Goods The Merchant has to insure that they: 1.Meet their description as advertised by the merchant. 2.Are of Satisfactory Quality 3.Meet their purpose
If they are Services The merchant only has to provide that he did his best in providing the service. The burden of proof lies upon the consumer (i.e. the consumer has to proof that the merchant did not do his best to provide the service).
How the problem can be solved Including the term “Digital Goods” in the Definition of Goods in Law (Like the European Union) Or The Quality of Digital Products should be “adequate Technical Quality (Like M- content in the UK regulations). This solution gives consumers more protection.
Digital Documents & Digital Signatures
The requirements of Written Documents under Law Legible: It has to be apparent and can be read (writing on water or on Air, is not a form of legible writing) Perpetual: The written document has to be lasting (it does not disappear by itself), (writing on sand is a legible form of writing; however it is not perpetual) Stable: This means that the written document cannot be changed, and it can be reproduced.
Digital documents are in general considered to be a form of ‘Legal Documents’. However, it will highly depend on the software used for the document. Examples for legal Digital Documents: 1. s in INBOX 2.Documents on PDF format. Example for un-legal Digital Documents: Documents written on Word Format.
Requirements of Signatures under Law. Personal: It is the property of the signatory and he can use it. Legible & Perpetual Interpenetration: That means that the signature has to be attached/linked/annexed to the document that is signed.
Forms of Accepted Digital Signatures Magnetic Cards Pin & Chip Cards Biometric Signatures Uploaded Signatures E-Signatures Click signatures