Author: Boyana Boyadzhieva
Rapid technological advances and the emergence of cross-border technologies have fostered the phenomenon of mass digitalisation, as a consequence of which consumer behaviour has changed and expectations to receive online services at a click away have increased. This has also necessitated the creation of a diverse ecosystem of online platforms that facilitate and cater to the different needs and desires of consumers, businesses and communities around the world. The impact of online platforms has revolutionized, and continues to do so, the ways in which today’s consumers shop, trade, learn, communicate, create, interact with others, etc.
Whether it is a social media platform, e-commerce platform, learning platform or investment platform, however, creating clear and comprehensive terms and conditions of use is essential for both the service provider and the users. These terms and conditions essentially form a contract between the provider and users, outlining the rights, obligations and restrictions that govern their relationship. They establish clear guidelines and expectations regarding the risks and responsibilities of using the platform, clarify payment and return terms, provide dispute resolution mechanisms and ensure compliance with legislation.
Comprehensive terms and conditions require careful consideration of legal requirements, taking into account the specificities and characteristics of the platform concerned.
Contents of the Terms and Conditions of Use of the Platform:
– Introduction and definitions of terms used in the Terms and Conditions;
– Purposes and Scope of the Terms and Conditions;
– Providing information about the Provider;
– Subject matter of the Terms and Conditions;
– Platform Features;
– User Account Registration;
– Service Request;
– Prices and method of payment;
– Service provision;
– Cancellation;
– Inability to cancel contract;
– Change of requested service;
– Refund;
– Force majeure;
– Rights, obligations and liability of Users;
– Provider’s rights and obligations;
– Processing of Personal Data;
– No liability;
– Dispute Resolution;
– Links to third party websites;
– Intellectual Property Rights. Restrictions on use;
– Final Provisions.
1. Introduction and definitions of terms used in the Terms and Conditions
In this part of the General Terms and Conditions, it is recommended that the Provider informs Users of the importance of reading the General Terms and Conditions and if they do not agree with any of the terms, then they should refrain from using the Platform.
Here it is also important to clearly define the key terms used in the Terms and Conditions to avoid any confusion and ambiguity.
2. Providing information about the Provider
It is essential that Users have access to information about the Provider, such as the Provider’s company name, registered office and address, as well as details of correspondence with the Provider. In addition, it is a legal obligation for all Providers in the European Union to provide contacts such as email, telephone and physical address on their website so that Users can contact them with any questions or problems.
3. Features of the platform
In this part of the terms and conditions, it is good to provide comprehensive information about the platform, such as what it is used for, what its features are, what result Users can achieve, what other features the platform provides, etc.
4. User profile registration
Next, the procedure for registering a user profile should be described if the platform provides such an option. It is important to stress here that if the platform is an intermediary and provides separate user profile registration options for different types of Users, the registration procedures for each separate option should be described.
5. Requesting a service/ Purchasing goods
As with the registration procedure, the procedure for requesting a service or purchasing a good should be described in detail. A complete Terms and Conditions would also indicate whether changes can be made for services or goods already requested and what the procedure is for making changes.
6. Prices and method of payment
For the sake of full transparency, it is advisable that the Provider informs its Users about the types of payments it accepts, how it informs Users about payment made and received, and whether part of the amount paid is directed as commission to the Provider in case the latter is an intermediary.
7. Provision of service
The Provider shall describe the conditions under which it will perform the services it provides, and whether it sends reminder emails to Users about upcoming services that Users have indicated they wish to receive.
8. Cancellation of contract/Inability to cancel the contract
It is of the utmost importance that Users are informed of their right to withdraw from the contract or, as the case may be, their inability to withdraw under the provisions of the Consumer Protection Act. In this connection, it is also obligatory to mention the possibility of a refund, if any, and under what conditions and what part of the amount will be refunded to the User.
9. Force Majeure
An exhaustively drafted T&C should contain a clause that exempts the Provider from liability for total or partial non-performance due to “force majeure”, such as fire, industrial accidents, acts of war, natural disasters, etc.
10. Rights, obligations and liability of Users
The General Terms and Conditions shall clearly outline the rights granted to Users as well as any restrictions on use. It is also advisable to state the responsibilities of Users, including compliance with applicable laws, respect for intellectual property rights, etc.
11.Rights and obligations of the Provider
Of course, the rights and obligations of the Provider should also be listed, such as the right to suspend, refuse or terminate the provision of service in the event of a breach and/or suspected breach of the Terms and Conditions by the User.
12. Processing of personal data
Although data processing is dealt with in detail in other documents, such as the Privacy Policy, we always recommend that Providers add in their Terms and Conditions a brief statement about their obligation to apply all data protection standards under the General Data Protection Regulation (GDPR).
13. Intellectual Property Rights. Restrictions on use
Clauses concerning intellectual property rights are also essential in the General Terms of Use. Here, the rights regarding the content of the platform should be clarified, as well as what the intellectual property rights of the Holders are if the latter upload or generate content via the platform.
14. Internal Complaints Handling System
Pursuant to Article 20 of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on the single market for digital services, Providers of online platforms ca be obliged to provide Users with an effective internal complaint handling system that allows them to lodge complaints, electronically and free of charge, against a decision taken by the Provider on the grounds that the information provided by Users constitutes illegal content or is incompatible with its terms and conditions (decisions on removing or blocking access to the information).
The internal complaint handling system must be easily accessible, user-friendly and allow and facilitate the submission of sufficiently accurate and duly substantiated complaints by Users. Providers should deal with complaints in a timely, non-discriminatory, fair and impartial manner and inform complainants promptly of their reasoned decision with respect to the information complained about and of the possibility of an out-of-court settlement, as well as of other available remedies. It is important to note that these decisions must be taken under the supervision of suitably qualified personnel and not solely on the basis of automated means.
15. Out-of-court dispute settlement
Users of the Platform who have received a decision in relation to a complaint they have lodged pursuant to the above point are entitled to choose any out-of-court dispute resolution body that has been certified in accordance with Article 21(3).
In addition, all traders established within the European Union who conclude contracts for online sales or services, or who provide marketplace platforms, are obliged to provide an easily accessible link to the European Online Dispute Resolution (ODR) platform – https://ec.europa.eu/consumers/odr/main/?event=main.home2.show and an email address where the ODR platform can contact them in accordance with Article 14 of Regulation (EU) No 524/2013. The European Online Dispute Resolution Platform ensures a safer and fairer online shopping experience through access to quality dispute resolution tools, through which Users can resolve the issue directly with the Supplier. The ODR lists a number of dispute resolution bodies that offer out-of-court dispute resolution procedures depending on which country the trader is established in and what the complaint is about. All bodies are approved on the basis of quality standards in terms of fairness, efficiency and accessibility. Each dispute resolution body has its own rules and procedures. They are usually quicker and cheaper than court procedures.
16. Final Provisions
In the final provisions of the General Terms and Conditions, it is advisable to specify the applicable law for all matters not covered by the General Terms and Conditions, as well as how any disputes between the Provider and the Users will be resolved. It is also important to add here that the Provider will inform the Users of any changes to the General Terms and Conditions.
New obligations for intermediaries under Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on the single market for digital services:
Pursuant to Article 14 of Regulation (EU) 2022/2065 on the Digital Single Market, Intermediary Service Providers must include in their General Terms and Conditions information on any restrictions they impose in relation to the use of their services on the information provided by Users. This information shall include information on all policies, procedures, measures and tools used for content moderation purposes, including algorithmic decision-making and human review, as well as the procedural rules of their internal complaint handling system. It shall be presented in clear, plain, understandable, accessible and unambiguous language and shall be publicly available in an easily accessible and machine-readable format and part of the information can be provided in a separate document of the General Terms of Use of the Platform.
Conclusion
Drafting comprehensive terms and conditions is an essential aspect of managing any online platform. By clearly defining the rights, obligations and responsibilities of both the Provider and the Users, the Terms and Conditions will help establish trust on the part of the Users, reduce risks and ensure compliance with the regulatory framework.
The investment of time and resources in developing and updating them will inevitably create a solid foundation for sustainable business growth.
Our service “drafting Terms and Conditions for the use of an online platform” includes the following:
- Consultation with the client in order to learn about the specifics of the platform and the client’s business;
- Asking questions in order to obtain the necessary information for the drafting of the General Terms and Conditions of Use of the platform;
- Preparation of comprehensive General Terms and Conditions of Platform Use that are fully tailored to the client’s business and the specifics of the platform;
- Providing the General Terms and Conditions to the client;
- Provision of a Standard Form for exercising the right of withdrawal if necessary;
- Opportunity to ask questions about the drafted General Terms and Conditions of Use of the platform and to complete the drafted document if necessary.
This material prepared by Boyana Boyadzhieva aims to provide more information about terms and conditions for use of a platform. It does not constitute a legal opinion and cannot be interpreted as individual consultation on any concrete facts or circumstances. The advice of an intellectual property specialist should be obtained for specific questions and situations. For more information on the above-mentioned issues and individual consultations, please contact KrasimiraKadieva law office at 00359 882 308 670 or make an inquiry using the contact form on this website. Boyana Boyadjieva is a legal associate at the law firm. She holds a Master’s degree in Intellectual Property Law from the Queen Mary University of London. Prior to joining the team of the law firm, Boyana interned at the European Union Intellectual Property Office (EUIPO). Her professional interests are related to intellectual property, data protection, e-commerce, and contract law, and regularly attends conferences, practical courses, seminars, and webinars in these areas of law. She is fluent in English.