This article is written by Anuradha Goel pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
Table of Contents
Introduction
From ordering groceries to food, everything has moved online with digitalization and technological advances. Every other transaction done online is a form of the purchase contract between the person ordering the items and the organization owning the website.
Terms and conditions are a form of an e-contract intended to create a legally binding relationship between the service provider and the user of the website. These terms and conditions embody the clauses that govern the relationship between the service provider and the user.
In the absence of these conditions, there will be no clarity between the rights and relationship of the parties that might give rise to disputes in the court of law.
Hence, it is imperative and important to establish the rights, obligations, and terms and conditions of the transaction in a crisp, clear, concise way to avoid legal disputes in the future. It is also essential to ensure that all the transactions are carried out in compliance with the rules and regulations of the jurisdiction one is operating in.
What is BigBasket?
Innovation Concepts Retail Private Limited (IRCPL), interaleia, known as BigBasket is India’s most popular online food and grocery store. The online supermarket storehouses every grocery item ranging from spices, fruits, vegetables to meat and packaged grocery products. The products are delivered right at the doorstep of the customer as per the timeslot opted and payments can be made either online or on delivery.
Why are terms and conditions important?
The terms and conditions are a set of rules and regulations framed by the service provider for the users visiting its website. Incorporating and portraying them at a prominent place on the website is important because of the following reasons;
- It informs the user that by placing an order on the website, the user confirms that he is competent to enter into a contract.
- It shall inform the user about the payment methods, return policies, delivery mode, privacy policy, and other details.
- It protects your intellectual property rights, defines your liability, indemnity, applicable laws clearly.
- A written contract establishes the terms in black and white, providing clarity, and is easier to enforce. It acts as a bible in the event of a breach of terms of the contract.
The Honorable Supreme Court in Trimex International FZE vs Vedanta Aluminum Limited has held e-contracts as valid in India even when the parties have not attested their signatures to it.
Terms and conditions of BigBasket
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Personal Information
An online grocery store will seek different kinds of information from the customer such as name, address, contact details, card details for making the payment, etc. In such situations, it is important to specify the kind of information collected and whether the collected information is stored/processed as well.
It should specify whether it collects, stores, and uses the cookies on your mobile/computer and the purpose of collecting the same. It should inform the user that they have the right to decline the cookies.
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Competency to contract
The terms and conditions must mention that the user by visiting and using the website confirms that he is competent to contract under the Indian Contract Act, 1872. A minor, if using the website, confirm that the action is being performed under the supervision of a legal guardian.
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Limited license to use the website
The clause should mention that the user understands that he has been granted a limited license to access and use the website for personal purposes.
The software underlying the website is the legal property of the organization or the developer who has developed the software. The user shall in no manner attempt to modify, hack, tamper with the software. The user shall not reproduce, copy, exploit any part of the website for commercial purposes without the written consent of the IRCPL.
The intellectual property rights in all the text, technology, content, material, etc that appear on the website rest with the company and access to the website shall in no manner be deemed to transfer, convey or confer any right to the user.
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Account
The prior condition is that the user needs to create and have an account on the website for placing orders. Additionally, the clause must state that the user agrees to provide the correct and true information to the website.
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Promotional newsletters
Every online grocery store needs to promote and market itself. One of the ways is to send promotional newsletters to the users who already have an account with the website. The said activity can only be done if the user has expressly agreed to receive such content. An effective and tricky way to do this is to include this clause as a part of the terms and conditions.
However, the user should be given an option to unsubscribe by either providing a link at the bottom of the promotional letter or by contacting customer service. The details of the customer service support team should be mentioned in the said clause.
By creating an account, the user agrees to receive the promotional newsletters on the registered email address provided. The user can unsubscribe to the newsletter by writing an email to the customer support team.
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Pricing methodology
The clause must mention that the discounts, if any, on the MRP offered by the company is at the sole discretion of the company and is subject to change anytime. It must expressly mention how the prices of fresh commodities such as fruits, vegetables, meat are calculated, i.e., whether they fluctuate or are fixed; whether the price when the order is placed is applicable or the date when the items are packed for delivery.
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Order cancellation
The clause must state whether the orders once placed can be cancelled/not. If yes, what are the terms and conditions and the manner for doing the same? If the order is cancelled, will the customer get a refund/will the credit coins be issued to the customer and reflected in his account?
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Returns and refunds
This clause must talk about whether the goods once delivered can be returned. If yes, within how many days of the delivery? Or can it be returned only at the time of the delivery? The clause must mention the conditions applicable for a product to be eligible as an item for return. Most of the grocery stores state the product can be returned only at the time of delivery if the customer is unsatisfied with the quality of any product.
The clause must mention whether the customer will get a refund/credit coins in his account and the timelines within which the same shall be processed.
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Covenants of the user
The clause must entail the covenants of the user such as the user shall provide the correct information, the user shall use the website only for lawful purposes, the user shall read the product description carefully, the user grants permission for being contacted for order related issues, the user shall not use the website in a manner considered as unlawful under the law, the user shall not disseminate any objectionable material, the user shall not harm the website by introducing any virus, trojans, etc.
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Colour of the product
It is a well-known fact that photography is a miracle. There may probably be a slight colour difference between the photographs of the product on the website and the actual product. Also, the appearance of the product on the website will depend on the computer/desktop/mobile of the customer.
Thus, the clause must clearly state that the website has tried its level best to display the product and its colour as accurately as possible. It is of course necessary that whatever is written in the policy must be followed in practice.
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Rights of the company in relation to the website
The company has the right to change, amend or discontinue the website, any of the features offered at any time as per its sole discretion without intimating the user. The user shall not hold the company liable for any termination or suspension of services.
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Third-party content
Advertising is one of the major sources of revenue for a website. Displaying third-party content is the most effective way to earn revenue. However, one needs to absolve itself from all liabilities arising due to the portrayal of the third-party content on the website. Hence, a clause must be incorporated to inform the user about the same.
The website is not responsible for the content of any third party on its website and does not guarantee the accuracy of the information posted by the third party.
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Modification of the terms and service
A company may keep updating its terms and conditions from time to time. The clause must mention that the company shall keep updating these terms from time to time at its sole discretion. The clause should mention whether the company shall intimate the customer about the updated terms/not. If yes, will it be through sending an email or displaying a message on its website, asking the customer to click on “I agree”.
If the terms are not acceptable to the user, he must discontinue using the website.
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Governing law
The clause should talk about the applicable law to the agreement and the method applicable for the resolution of the disputes arising out of or in connection with the agreement.
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Indemnity
This clause shall specify the indemnity offered by the customer to the website from and against any losses, claims, damages, costs, expenses arising due to actions of the user, or breach of the terms and conditions of the agreement.
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Termination
The clause must talk about the term of the agreement and the method of terminating the agreement.
Conclusion
The terms and conditions establish the legal relationship between the parties so as to make it valid as per the Indian Contract Act,1872 and enforceable in the court of law. The terms and conditions must be legible and written in a simple, lucid, and easy language so that the user can understand them and the user must be informed to discontinue using the website if the terms are not acceptable.
The terms and conditions must cover the important aspects related to personal information collected, governing law, intellectual property rights, return and refund policies, etc.
References
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