Samantha Woodley, Senior Associate, Birketts LLP
Q: We supply our products to both consumers and other businesses. Do we need to have separate terms and conditions on our website for both B2C and B2B?
A: You do not necessarily need two separate sets of terms and conditions on your website for B2C and B2B sales. However, you do need to make sure that any terms and conditions you do have, contain provisions which cover both B2C and B2B sale because the law in England and Wales treats consumers (B2C) and businesses (B2B) differently.
When you sell to consumers, businesses have more obligations (and consumers have more rights) in relation to contracts for the sale of goods, services and digital content. For example, consumers (by law) may cancel any contract (with some limited exceptions) within 14 days of entering into them, and equally, may return items purchased in many circumstances (there are limited exceptions) even where your business ‘policy’ is not to accept returns. Equally, you must give the consumer certain pre-contract information, which includes setting out their right to cancel and their other statutory rights. When selling to other businesses, you are not obliged to provide such information, nor the right to cancel or ability to return.
Importantly, there are also different rules on limitations of liability when selling to consumers and other businesses; generally speaking, you are able to limit your liability more when it comes to sales to other businesses, and there is very limited scope for limiting your liability when it comes to consumers.
Given the different obligations and rights between consumers and other businesses, you may elect to draft two separate sets of terms and conditions. Whilst this could be beneficial in terms of evidencing your compliance with consumer laws, much of the wording between the two terms would be duplicated, as not all the obligations and rights differ.
Most commonly, we see a single set of terms and conditions which set out clearly in numbered clauses which terms apply to business customers, which terms apply to consumer customers and which terms apply equally to any customer who purchases from your business. As long as it is clear on reading the terms which sections apply to a consumer, and a consumer can easily see and understand this, then we do not see the need for two separate sets of terms and conditions.
Q: We use various cookies on our website to collect details about visitors to our website. What do we need to tell them about our cookies?
A: Two separate legal frameworks apply to the setting of cookies on your website:
Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (as amended) (PECR); and
UK General Data Protection Regulation (UK GDPR) and Data Protection Act 2018.
Unless an exemption under PECR applies, you must provide users with controls over any non-essential cookies and still allow users to access the website if they don’t consent to these cookies. You must also ensure that any non-essential cookies are not placed on the landing page (and similarly that any non-essential scripts or other technologies do not run) until the user has given their consent.
You must also provide clear and comprehensive information relating to the cookies which are set, including what the website cookies are, what they do and how long they will remain on the user’s device, before the user consents to them being set. You must clearly and specifically name any third parties who set cookies and explain what they will do with the information those cookies gather.
The easiest way to provide users with this information is to set up a cookie banner, allowing users to accept or decline all but essential cookies when they first visit your website, and to have a cookie policy, easily accessible on your website (and linked via the cookie banner). This should enable you to provide all the information required by law and allow you to demonstrate that your website has not set cookies without the required consents.
Q: We allow visitors to our website to sign up for our regular newsletter and details of product promotions. Do we need them to agree to any terms for this?
A: You do not need website users to sign up to any additional terms for this purpose. However, as provision of newsletters and product information will involve the processing of personal data, you do need to make users aware (on the sign-up page, or any contact pages) that signing up or contacting you (as the case may be) will involve the collection of their personal data. By law, when you process personal data, you are under an obligation to provide the person whose data you are processing with specific information about what you are collecting, for what purpose, how long you will retain it for and their rights in relation to the personal data that you hold and otherwise process.
The easiest way to provide the relevant information, is via a privacy policy, easily accessible on your website (and linked on those pages where you collect personal data). Having a privacy policy means that you do not have to personally provide the relevant information to each individual separately, but can have everything all in one place, accessible to all.
