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NEWNMCLE is new emerging website for educational
purposes which provides study materials and test
applications, in which , consumers have to pay some
amount so that , they will test their skills. This
website is made for online version of study materials
that is electronic version of study materials as well as
test papers which have programmed and tested for the
best practices questions paper, which will let you to
test and examined by yourself.
Website are not required to post terms and conditions
and there are still some website that do not do so.
However , there are mandatory disclosures that apply to
particular type of transactions, whether web-based or
not. The Uniform Commercial Code contains requirements
for making written disclaimers of warranties , and
banking and financial services regulations have many
specific disclosure requirements.
The Children’s On-Line Privacy Act requires explicit
for sites collecting personal information about
children under the age of 13. The Digital Millennium
Copyright Act (the DMCA) requires more disclosures. If
an on-line service provider wishes to benefit from the
“safe harbor” provisions of the DMCA to be protected
from copyright infringement suits for content posted on
website that is hosting, then it needs to disclose
contact to receive notices from copyright claimants.
In short , if a law requires that a written statement
must be made, then the terms and conditions should
comply.
What should be included in terms and conditions ?
Terms and conditions may be a convenient place to
include warranties, delivery terms, and return policies,
in addition to any legally-required terms, based on the
nature of the transaction. Other provisions often
included in website terms and conditions are limitations
on liability and clauses providing for certain dispute
resolution procedures such as arbitration or mediation
and/or designating a locale for bringing claims.
Terms and conditions can also contain restrictions on
the visitor’s use of the website itself. In this
category are prohibitions on copying data appearing on
the site, or forbidding the use of robots or spiders.
Protecting the website proprietor’s data by contractual
agreement is important because, in the Nepal, individual
pieces of factual data, ( i.e. an address, sports score
or available ticket) are not otherwise protected against
copying by the intellectual property laws even an entire
database could have limited or no protection depending
on how much creative selection or arrangement was
involved in compiling it. Likewise, unauthorized linking
to a site is not prohibited by other law, unless it is
done in a manner that constitutes copyright or trademark
infringement, so a term or condition may be directed to
this.
The impact of an amendment to the terms and conditions
is greater when there are ongoing services being
provided, there are repeat customers ( who may not be
inclined to read the terms and conditions each time they
make a purchase ), or, the company’s ability to disclose
information is being liberalized. Sometimes a company’s
privacy is set forth, or incorporated by reference, in
the terms and conditions. Depending on the factual
circumstances, some privacy “policies” are contracts
requiring assent, while other privacy polices are styled
as statements of policy. See Privacy Policy Section
below.
Are my terms and conditions enforceable ?
Courts are now regularly enforcing so-called “click
wrap” agreements, where a user’s assent to the terms and
conditions posted on a website is rendered by clicking
on a button that says ” I agree ” or “yes”. When these
agreements are upheld, users are deemed bound by the
terms in the same way that they would be bound by a
signed contract, whether or not they actually read the
agreement, so long as there was an dequate opportunity
to do so. Requiring the user to expressly agree or
disagree with the terms and conditions posted on a
website goes a long way to ensuring that an enforceable
contract was created. Whether posted terms and
conditions that do not require the user to click an ” I
agree” button can create an enforceable contract is less
certain. ( See “Can I simply post terms and conditions
?)
Yet, even where an electronic agreement requires express
assent, are still reasons why a court may not enforce
it. A court will consider whether the terms were
presented in a way that provided reasonable notice, i.e.
Was the typeface legible? Was the full text of the
agreement easy to find ? Was the text, even if large,
easy to understand ? Another element of adequate notice
is whether the user was made reasonably aware that it
was agreeing to a contract, i.e., was the button meant
to indicate assent designated as ” I agree” or “Yes”, or
in an ambiguous manner , such as “submit”, “continue” or
“show me the lenders?”
To increase the prospects of enforcement, website terms
and conditions, like all standard form contracts, should
be drafted in a clear manner, without technical jargon
and excessive legalese. Thus, care should be taken that
terms and conditions are not undully long by virtue of
irrelevant clauses or extraneous boilerplate. They
should also be presented as legally-binding terms, and
not mixed with marking messages, and they should be
scoured for inconsistencies with other statements made
on the site. It is also important that the site allows
the user adequate time to review to terms, both when
first presented with them and for later reference. (For
other factors relating to the presentation of terms and
conditions, see “Are electronic contracts enforceable?”
and “Can I simply post terms and conditions on my site?”
Terms and conditions should be capable of being retained
by the user in electronic or printed form, if they are
not being sent directly to the user by another means,
such as by mail or fax. Some industries, such as
financial services, are required to provide copies of
contracts to the user in hard-copy form. In addition, as
to electronic transactions generally, Section 8 of the
Uniform Electronic Transactions Act, adopted in some
form in nearly all states , prohibits a website
proprietor from inhibiting a user’s ability to store or
print the contractual terms if the parties have agreed
to contract electronically and the law requires that the
user be provied information in writing. One might expect
the same requirement in other jurisdications even
without UETA. Under Section of the Electronic Signatures
in Global and National Commerce Act ( E-Sign) terms and
conditions must remain available to the user, in a form
capable of reproduction for later reference, if the
applicable law requires that a record be retained the
transaction.
In order to avoid errors that result from typos or
improper navigation of the site, the user should be able
to view and approve an order summary or confirmation
screen prior to the placement of an on-line order. In
fact, UETA Section, gives an individual the right to
rescind a website transaction resulting from his or her
error if there was no opportunity to correct it,
assuming that the individual promptly notifies the
seller of the error, takes reasonable steps to return
destroy any product or service received, and has not
used any benefits provided.
Finally, an issue that underlies all standard form
consumer contracts, which are presented on a “take it or
leave it basis”, is whether the terms are so
unfavourable as to be considered ” unconscionable ” and
, therefore, unenforceable, regardless of whether the
customer has manifested his or her assent to them.
What provisions are not enforceable ?
As in the world of paper contracts, certain provisions
in terms and conditions may be enforceable, even if you
have obtined a click of “I agree”. Illegal provisions,
such as usurious finance charges, are void as against
public policy, no matter how clear the other party’s
consent may be. Other provisions may be considered
“unfair trade practices” under federal or local consumer
protection laws. In addition to being unenforceable,
there may be substantial penalties associated with
including illegal or unfair terms in a consumer
contract.
Moreover, provisions in standard form contracts which
are so favourable to the vendors as to “shock the
conscience” will not be enforceable on grounds of
“unconscionability”. An example of a provision in an
electronic contract which is sometimes enforced, but
other times found to be unconscionable , is one
requiring the resolution of relatively small claims
against the company in a location far from where the
claimant resides, or a waiver of the right to bring a
class action.
It is hard to enumerate provisions which are
unconscioable , since the outcome often turns on the
specific facts of the case, the applicable state law,
the sympathies of the court, jury or arbitrator, and the
standard industry view of a customer’s reasonable
expectations. Even if the only risk is that the
provision will be struck down (and that is often not the
only risk), there can be negative publicity associated
with any challenge to the company’s business practices.1
It is hard to enumerate provisions which are
unconscioable , since the outcome often turns on the
specific facts of the case, the applicable state law,
the sympathies of the court, jury or arbitrator, and the
standard industry view of a customer’s reasonable
expectations. Even if the only risk is that the
provision will be struck down (and that is often not the
only risk), there can be negative publicity associated
with any challenge to the company’s business practices.
The questionable clauses included those which are common
in Nepal website terms and conditions and other standard
form consumer contracts, such as, disclaiming liability
for performance and limiting the customer’s remedies to
personal information service. Moreover, the court
suggested that consent was required for the transfer of
personal information outside of Europe and the use of
such information for marketing purposes.
publish the judgment in the newspaper and to email its
subscribers regarding the changes.
To the extent that a website is directed at consumers
located outside the Nepal , or a significant amount of
transactions emanate from certain countries or from
regions with uniform laws, such as the European Union,
an evaluation of terms and conditions ought to be made
under such foreign law to assess compliance. The
website’s proprietor will also need to consider the laws
of different states within the Nepal, as well as the
provisions of Nepal federal law. See discussion below
under “What body of law governs my ecommerce site?”
How can I prove that I have a contract ?
Even if the terms and conditions are enforceable in
theory , the website proprietary may need to demonstrate
that a contract was made when it seeks to enforce such
terms. This requires preservation of the circumstances
under which the terms and conditions were presented, in
order to establish that notice and the opportunity to
review such terms was adequate. Since websites tend to
be redesigned with great frequency, the website
proprietor should maintain copies of each version of the
pages with any legal notices or links to them, and the
terms and conditions themselves, all as they appear to
the user. In addition, every time the terms and
conditions are reviesed, a copy of each version should
be presented , along with its dates of use.
If the process relied on to establish the contract is
not apparent from copies of the screens, then it should
be documented in a memorandum. For example, the fact
that the program will not let a user past a certain page
without clicking ” I agree” may not be apparent from a
copy of the ” I agree ” screen.
Some courts and commentators have suggested that
preserving “click-stream data” pertaining to each
individual transaction would be useful in establishing
the user’s notice of the terms. Such data could
indicate, for example, whether a user opened the link to
the terms or by bypassed them. The sophistication of the
tools used, and quantity of data maintained, will likely
vary with the nature of the contract and the importance
of later enforcement of the terms.
Can I simply post terms and conditions on my site?
Some website proprietors simply post terms and
conditions, generally behind a link labeled ” terms and
conditions” or ” legal notices”. They do this with the
expectation that the terms will be enforceable without a
specific manifestation of assent by the user, such as by
clicking ” I agree” or “Yes”. The terms themselves, or a
separate legend on the home page, may contain statements
that the posted terms are intended to create a binding
contract and that certain action, such as purchasing the
product, or “use of the site,” is deemed an acceptance
of such terms.
There are only a few cases addressing the
enforceablility of these “browse-wrap agreements” (as
opposed to numerous cases affirming the enforceablility
of “click-wrap” agreements, which require the separate
click of “I agree ” or the like to indicate agreement to
the terms.) The browse- wrap decisions are highly fact-
dependent. Few, if any, present the classic situation
where terms posted behind a clearly-labeled link are
enforced against a user who wasn’t informed of them by
another means, such as by letter or by repeated
exposure.
While no approach can guarantee that a given term in a
website’s terms and conditions will be enforceable, the
case law addressing both click-wrap and browse-wrap
agreements provides some guidance as to how terms and
conditions should be presented in order to increase
their chances of being enforced. The most important
factor is that the user user gets notice that the
proposed terms exist and are meant to create a binding
contract. This is because the conduct that typically
purports to indicate the user’s assent to the terms,
namely, using the website, conducting a search,
purchasing the product, or downloading the software may
be coincidental.
Whether notice of the terms and conditions will be
considered adequate is a function of (i) the physical
prominence of the notice, such as placement on the page,
font size, and color, (ii) the content of the notice,
i.e., does the notice hand me terms themselves, (or on
various pages) link to them, make it clear that the
terms are binding and that taking certain action, such
as proceeding past the home page placing an order, or
submitting a query, constitutes assent, and (iii) the
timing of the notice, i.e., is available before the
action which purports to manifest acceptance is taken?
The site must give the user an adequate opportunity to
review the terms and conditions before being considered
bound by them. Displaying the agreement in an
unreasonably small viewing window, employing multiple
hyperlinks to access it, or providing only a one-time
opportunity to read it, may not provide an adequate
opportunity for review. In addition, the terms and
conditions should be able to be stored and/or printed by
the user. (See “Are electronic contracts enforceable?”)
Yet, even if there is adequate notice and a reasonable
opportunity to review terms and conditions, there is no
guarantee, at this point in the evolution of the law,
that terms and conditions which are simply posted on the
site will create a valid contract. Accordingly, if the
enforceability of the terms and conditions is extremely
important, or if the terms are unusual or particularly
unfavorable to the user, a risk/benefit analysis may
lead you to adopt a click-wrap format.
How do I amend terms and conditions?
There are no uniform laws specifically directed at how
to amend electronic contracts. Attempts by website
proprietors to alter their standard terms and conditions
have come under attack, mainly in the context of
amendments to privacy policies. Such scrutiny has come
primarily from government regulators, namely, the FTC
and State Attorneys General, under their jurisdiction to
prohibit unfair consumer trade practices, and from
consumer groups. There are analogous situations from the
“paper world”, for example, where credit card companies
or long-distance telephone service providers attempt to
make across-the-board changes to their terms of service
by means of a mass mailing, or where employers attempt
to change uniform employee policies. The impact of an
amendment to the terms and conditions is greater when
there are ongoing services being provided, there are
repeat customers (who may not be inclined to read the
terms and conditions each time they make a purchase), or
the companies ability to disclose personal information
is being liberalized. With respect to the liberalization
of disclosing sensitive personal information, some
courts have required affirmative opt-in to such changes.
As is the case with the enforcement of electronic
contracts generally, it is more likely that individually
signed (or “clicked on”) agreements to new terms will be
valid. This is true even if the original terms reserved
the right to amend at will. Nevertheless, certain means
of presenting an amendment should increase its chances
of being enforced. First, advance notice of the
amendment, in a form reasonably calculated to catch the
attention of the user, should be provided. In addition
to prominently posting notice of the amendment on the
home page, some website proprietors have sent individual
emails to subscribers, alerting them to the changes.
Second, the content of the notice should indicate the
nature of the amendment and when it will go into effect,
allowing sufficient time for users to come upon the
notice and react to it. Third, there should be an option
for customers not to agree to the change, whether by
canceling their service, or by advising the company, in
which case, the old rules should continue to apply to
them.
A higher degree of protection to the customer should be
considered where the rights being amended are important
ones and the changes are materially adverse. Of course,
you cannot propose terms in an amendment which would be
illegal or unconscionable, if contained in the original
terms and conditions.
Payment is made for easy access to pay for product . It is programmed non refundable. Please kindly read our terms and conditions before you buy our product and services. Khalti payment is integrated for who lived in Nepal and Paypal payment is integrated for who lived in outside from Nepal.