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If you allow customers to place orders online, you must ensure that the terms and conditions of the contract are set out on the website and can be accessed and downloaded. Even where the website is simply used as an advertising tool, it is advisable to set out your terms and conditions clearly.

Are online contracts legally binding?

Contracts that are formed on the internet are legally binding and enforceable when the following conditions are satisfied:

• Offer: One party must make a clear offer to enter a contract with the other.  For example, a consumer offers to buy goods by placing an order.
• Acceptance: The other party must clearly accept the offer, e.g., a trader accepting the order by sending a confirmation email or dispatching goods. 
• Intention to create legal relations: Both parties must intend the contract to be legally binding.
• Consideration: There should be some form of exchange between the parties, e.g., money paid for goods.

It's not necessary for contracts to be in writing or signed by both parties to be legally binding. However, having written evidence can be helpful in case of disputes.

When is the contract formed?

Generally, an online advertisement will not constitute a formal offer to contract (although care should still be taken when creating an advertisement). Instead, a contract is formed when a customer places an order and the seller accepts it.

To avoid misunderstanding, the terms and conditions about when the contract is formed should be clear. For example, indicating that the contract is formed when the trader sends a confirmation email can help prevent issues if circumstances change.

Be cautious of automatically generated order confirmations. These can sometimes cause confusion about when the contract is formed. Ensure that the wording of these confirmations is clear that it is not a legal acceptance of a customer's offer.

Any terms and conditions that you use should be tailored to the needs of your business and written using language that is plain and easy to understand. Generally, any contract for goods or services should address:

• your business identity, geographical address and contact details
• the description of goods or services being supplied
• the price and payment structure
• the delivery details, including the costs, time, place and who is responsible for delivery and returns.
• the rights of either party to terminate the contract, including information on the consumers right to cancel (if the right to cancel exists)
• confidentiality and data protection provisions
• confirmation of which country's laws apply to the contract

Your contract should include all of the information required by law including the pre-contract information required under the .

Limitation of liability clauses

Clauses limiting one or both parties' liability are usually the most contentious. There are restrictions on the ability of businesses to limit their liability. Generally, clauses limiting liability need to be reasonable to be enforceable.

There are stricter rules for businesses dealing with consumers, so it is more difficult for businesses to impose exclusion of liability clauses.

Dealing with consumers and business customers

For businesses who deal with both consumers and business customers, it is usually better to have two sets of terms and conditions. Business customers have similar protections to consumers from misleading advertising.

There is a range of legislation that you are obliged to comply with when transacting online. The rules are designed to protect the purchasers' rights and to make it clear when a contract between a buyer and seller becomes binding.

• Contract formation: Ensure terms and conditions are incorporated at the time the contract is concluded by using clickwrap agreements (i.e., an agreement accepted by clicking a button or checking a box to indicate acceptance). You must ensure a buyer fully understands and agrees to your terms and conditions when they accept. Avoid solely relying on a click button or checkbox declaration they have read and understood the terms. You should actively highlight the terms and conditions to the buyer during the online buying process (e.g., display important contract details prominently beside product information on the website).
• Data Protection Act: You must comply with this legislation, which imposes conditions on both data processors and controllers. Read more on the Data Protection Act and UK General Data Protection Regulation.
• Intellectual property: Issues such as copyright and trade marks should be considered, not just for items displayed on your site, but also within any metatags. Understand the different types of intellectual property.
• Consumer protection legislation: the UK has several consumer protection laws, which you should comply with, this includes
  • Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013: This covers consumer contracts made on business premises, online or away from your premises. The regulations require detailed information to be provided to consumers and, in certain circumstances, a 14-day right to cancel. Read more on the rules of consumer contracts.
  • The Consumer Rights Act 2015: This sets out the rights of consumers when buying goods, services and digital content. It helps consumers to obtain redress when their purchases go wrong and also covers unfair terms in consumer contracts. It is in the interests of anyone who sells goods, services or digital content to understand the Act and their responsibilities.
  • Digital Markets, Competition and Consumers Act 2024: This act controls unfair practices used by traders when dealing with consumers. It establishes broad rules outlining when practices are unfair. To comply, when forming online and any other type of contracts, you must ensure that information about the products you sell (e.g., the description and price) are clear and not misleading. Additionally, any terms and conditions you apply must be fair, easily understood and provided to the consumer before the contract is formed. Read more about the rights of customers.
  • The Consumer Protection Act 1987: This deals with product liability and creates strict liability for personal damage (e.g., death, injury) or damage to property caused by defective products. The Act must be considered when writing liability clauses.
  • The Business Protection from Misleading Marketing Regulations 2008: Prohibit misleading business-to-business advertising and impose further restrictions on how businesses compare their products to rival products from other companies. See business-to-business marketing.
  • The Unfair Contract Terms Act 1977: Regulates business to business contracts, limiting the extent to which one business can exclude their liability to the other. Understand the rules of business-to-business contracts.
• The Financial Services (Distance Marketing) Regulations 2004: Apply to the sale of financial services (e.g., insurance products) to consumers via means of distance communication (e.g., online). It requires that consumers are provided with detailed information and, in most circumstances, provides consumers with a 14-day right to cancel.
• Security: Be aware that selling online will necessitate the passing of sensitive data and payment instructions. An online vendor could be liable for breaches of security on their site.
• Exclusions on restricted goods: Some types of goods which are legal to sell in one jurisdiction may be prohibited in other jurisdictions.
• Specific regulation: Specific industries may be regulated. This is particularly the case with premium-rate internet sites or those aimed at children. There may also be implications as a consequence of competition law. Check each potential market sector carefully.
• Access agreement: It is important to have terms and conditions governing the use of your website. These must be set out prior to the customer proceeding to purchase - commonly, the customer must click on an 'I agree' button to proceed, indicating acceptance of the terms and conditions.
• Advertised delivery restrictions and surcharges: Any  you make must be accurate. Any qualifications about delivery must not contradict the main claim. For example, claims about 'UK delivery' must apply equally across the whole UK including Northern Ireland and the Scottish Highlands.

Online contracts can sometimes lead to disagreements about terms or performance. Here, we outline key considerations. However, for legal disputes, consult a solicitor.

If the contract has an international element, identifying the governing law and competent courts is crucial. There are significant exceptions in favour of consumers.

European Union (EU) jurisdiction

In the European Economic Area, parties can choose the governing law and the forum for dispute resolution - eg courts of a particular country, arbitration etc. The Rome Convention rules decide which law applies, although certain mandatory rules in a purchaser's country will always apply, for example for financial services or consumer protection.

Similarly, in the EU jurisdiction of disputes is determined by the Brussels Regulation. If the parties have not agreed jurisdiction, the basic rule is that a defendant may be sued where they live, or where the contractual obligation was performed.

Consumer protection laws

Consumers may invoke consumer protection laws either in their home jurisdiction or the supplier's jurisdiction, but almost always may only be sued in their home jurisdiction. Therefore, online businesses dealing with consumers must be prepared to comply with consumer protection regulations in each market to which they sell.

Reducing uncertainty

To reduce uncertainty in the event of a dispute, online sellers should specify in their terms and conditions the governing law and jurisdiction for disputes. However, if consumers have a right to take legal action against you in their home jurisdiction you cannot use any terms and conditions that would attempt to restrict or take that right away.

The law on jurisdiction can be complicated, especially when dealing with consumers outside of the UK and the EU. If you are unsure, you should seek legal advice from a solicitor before adding any contract terms in relation to governing law and jurisdiction.

An electronic signature is the digital equivalent of a written signature. They provide assurance that the authors and signatories of e-mails or electronic files are who they claim to be.

Why use electronic signatures?

All parties involved in any commercial transaction or messaging activity need to have confidence that the communications they send reach their destination without being changed in any way. They might also want them to reach their destination without being read by anyone else.

Electronic signatures can:

• prove the origin of a message
• prove whether a message has been altered
• prove that a message was sent, and at what time with time stamping
• keep messages secret by using encryption

The Electronic Communications Act 2000 has made it clear that electronic signatures are admissible as evidence about the authenticity or integrity of electronic communication. A European directive has ensured the effectiveness of electronic signatures across Europe. Legislation in the USA and in many other countries has done the same elsewhere.

How the technology works

An electronic signature can be attached to anything recorded digitally, including documents, images, e-mails and web pages. Some standard software, for example, Microsoft Outlook, includes the appropriate functions. You and your partners will each need a digital certificate to read encrypted communications.

Off-the-shelf software packages offer robust security for signing and encrypting files, instant messages and web pages. They can offer additional options such as control over message history, multiple users signing and alteration checking.

Implementing electronic signatures

To implement an effective electronic signature system, follow these key steps:

• understand what you want to achieve and ensure that it's realistic
• understand the projected total costs and the benefits
• identify the partners with whom you want to exchange signed information
• consult - seek professional advice, and talk to your trading partners and similar organisations
• experiment with low cost or free introductory versions
• provide staff training or familiarisation, if necessary
• encourage staff involvement and feedback
• monitor and review the impact on your business and against your objectives

To send encrypted information or verify electronic signatures, you and the recipient need specific information. This information is stored in digital certificates.

A digital certificate acts much like an electronic passport, verifying your identify and confirming your rights to access certain online information and services.

You can obtain a digital signature from any of a number of . These organisations are sometimes known as 'trusted third parties'.

Certificates are available for both individuals and businesses - approved versions are often available on a monthly or annual subscription basis and the cost will depend on the number of signatures you require. You need a separate digital certificate for each e-mail account you want to send signed e-mails from.

Digital certificates are available online and, depending on the level of security you want, should be e-mailed to you within a day of submitting the necessary information to prove your identity.