One of my goals for 2019 is to finish my law degree and qualify as a lawyer. I am completing a post-graduate honours dissertation on the enforceability of changing website terms in telecommunications contracts. I can already feel my readers slipping away at this point as they visualise reading through a hundred pages of a Master Services Agreement. I must admit I don’t blame you!

One of the privileges of studying at AUT Law School is access to the exceptional lawyers that make up the teaching staff. Many have studied at a postgraduate level at top universities around the world and gone on to have sterling careers as senior commercial lawyers. I’m grateful to be able to have access to such people.

I’ve noticed that more and more written contracts refer to terms that are on the service provider website. What does this mean at law? Like many aspects of commercial law in New Zealand, this is yet to be tested in the Courts.

So can service providers enforce changing website terms in telecommunications contracts and why is this important?

Some services providers believe a reference to website terms gives them an implied right to change their terms without notice. In some cases, website terms disappear altogether. Disappearing contract terms are problematic mainly if there is a dispute further down the track.

In other countries, such as the US, the Courts have held that any change to contract terms needs to be agreed by both parties. When you are upgrading to the latest version of software on your iPhone, you are required to accept any new contract terms and conditions. Your action to agree to these terms seems to make perfect sense to me.  My task is to ascertain to the best of my ability how the New Zealand Courts see this situation.

It the meantime, if you cannot negotiate website terms out of the contract you should include a printed version of the website contract terms in the appendices for reference. This way at least you know what you have agreed, and you can refer back to if there is a problem in the future.

Des Small

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