SHIPBROKERS’ WEBSITE WORDINGS
In common with paper based terms and conditions it does not matter how well the terms are drafted if they are not properly incorporated in the dealings between the parties. The access page to the website should therefore clearly state that use of the website is subject to the conditions of use. These should then be accepted by “clicking” on a button. The terms and conditions themselves should also be accessed through a specific button. A large number of websites sensibly incorporate a provision that the host reserves the right to update the terms from time to time and therefore the user should check the terms on each occasion before using the website.
The contents of the conditions of use will vary according to the function the site is intended to perform. The terms and conditions that would be appropriate to use for exchanges, electronic auctions or other trading platforms are beyond the scope of this article and would need detailed consideration. There are, however, a number of general points that apply to the majority of sites providing market information.
The majority of shipbrokers’ websites provide market reports. Whether published on paper or electronically these should contain wording restricting the potential for a claim. A general report or market circular of ships and cargoes should state that while care has been taken in compiling the information it is given without guarantee. Another useful provision is that the information is provided as a general guide only and is not intended for any specific purpose.
One of the problems in providing detailed market analysis is that there is a grey area where market knowledge and assessment is combined. A number of reports sensibly point out that factors such as market confidentiality may mean that the information is incomplete and in addition the report may be based on assessment. An example would be ship values where no sales information for comparable ships is available. In addition the terms and conditions should point out that information that has been obtained from third parties, is believed to be accurate, but is subject to limited audit and validation procedures.
A market report issued in physical form will be dated and although it does not have a “sell by date”, it is clear that the information becomes obsolete. Publication of the same information on a website is slightly different. A website is maintained on an ongoing basis by the broker. If the information is out of date it could be argued it should simply be removed. It is therefore advisable to put a provision in the terms and conditions that while the site is updated on a regular basis, the company data collection procedures are ongoing and accordingly it cannot be guaranteed that the information contained on the site would be the latest that has been received. Another consideration is that the terms and conditions should make it clear that you cannot guarantee that the website will be on line at all times.
An aspect of websites is their ability to link up with other such sites. When providing such links it should be specified that these are only for the convenience of a user and that the host is not making an endorsement or recommendation of that site. In the circumstances no responsibility can be accepted for any consequences of access to third party sites.
A number of sites provide access to special areas via a password. If this is the case the terms and conditions should provide that the user agrees to maintain the confidentiality of the password and is responsible for any misuse.
One of the most frequently expressed fears is the possibility of being held liable for spreading a computer virus. A clause should be inserted to reduce the risk of a claim. This would provide that while the host has taken reasonable steps it cannot be guaranteed that the site, or any site to which there is a link, is free from viruses or anything else that may interfere with or damage the operation of the users’ computer systems. The users should be advised to use current virus scanning software. Another useful addition is a notice setting out that the information is protected by copyright. One of the first cases ITIC handled in relation to the internet was to prevent the republication of our Members’ market circulars on a website.
The final consideration is that it is important that the terms and conditions of use contain a notice as to the law and jurisdiction that govern disputes .
The above points are a general guide to some of the provisions that could usefully be included in a shipbrokers’ website. The managers of ITIC will be happy to discuss Members’ specific websites with them.