Written by Taylor London Your website is not only your online authority hub and a place where you can show your expertise through awesome content and generate leads for your business. It’s also a place where you can nurture a trusting and mutually beneficial relationship with your customers and protect your own business interests. One way to achieve this is posting and regularly updating your website Terms and Conditions.
Terms and Conditions: What Are They and Why Does Your Website Need Them?
Although having Terms and Conditions (T&C, also referred to as “Terms of Use”) for the use of your website is not required by law, having them in place puts you in control of how your website is utilized by visitors and can limit your legal exposure and help you protect the rights to your website content.
What are Terms and Conditions? Terms and Conditions (also known as Terms of Service or Terms of Use) are a legally binding contract between you (the website owner) and your end customers. It sets the rules for the customers’ use of your website, apps, and services and sets forth your mutual rights and obligations. The T&C help to manage end user expectations, outline acceptable user behavior, and protect you from potential legal issues.
Legal Protection: Having T&C on your website can help limit your liability in case of disputes, misuse of the website or services, or other legal issues. It also provides a framework for resolving disputes through arbitration or other means that are more convenient to you.
Enforceable Contract (“Browsewrap” vs. “Clickwrap” Agreements): Arguably, contracts are only as good as they are enforceable by law in case of a dispute. For your T&C to be enforceable, you need to ensure your end users accept them either impliedly (by continuing to browse your website) or expressly (by taking a deliberate action that shows their consent).
- Implied consent can be achieved if you inform your consumers (for instance, within the T&C) that by continuing to use your website, they are agreeing to the T&C. If they keep browsing your site after such a notification, they are considered to have impliedly accepted your T&C. For the implied consent to be valid, you need to provide a conspicuous link to your T&C on your website, which is usually located at the bottom of the main page. This is also called a “browsewrap agreement.”
- To reduce the risk of your T&C being unenforceable, you could obtain explicit consent from your website users. One way to do this is by requiring users to check a box in a pop-up window saying that they agree to your (linked) T&C before they can browse your site. This is also called a “clickwrap agreement.”
Consumer Relationship Management: Having T&C on your website demonstrates to visitors that you prioritize legal integrity and mutual respect, setting clear expectations for both parties.
Terms and Conditions for the Use of Your Website vs. Terms and Conditions for Your Services
When drafting T&C, it is crucial to understand the distinction between the T&C for the website itself and the T&C for the services which may be offered through the website (“Service Terms and Conditions”).
These two sets of terms often serve different purposes and are typically documented separately to address their unique requirements and legal implications.
Service Terms and Conditions are specific to the services provided by the website owner and are often a separate document. These terms are more detailed and tailored to the particular services offered, addressing aspects that are not covered in the general website T&C, including the payment and service delivery terms.
Application Marketplace Requirements: Many application marketplaces, such as Google Play and the Apple App Store, require developers to have Service Terms and Conditions in place (also referred to as End-User License Agreements or EULA in the context of software applications). This ensures that the applications comply with legal standards and protects both the developer and the users.
Suggested Sections of the Terms of Service for the Use of Your Website
- Parties: This section identifies the parties involved in the agreement, typically the website owner and the website visitors.
- Continued Use of Website as Acceptance of T&C: To ensure your T&C are enforceable, introduce a clause saying that your website visitors’ continued use of your website constitutes their acceptance of your T&C.
- Definitions: Clearly define key terms used throughout the document to avoid any ambiguity.
- Obligations of End Consumers: Specify what obligations your users must abide by when using the website, such as providing accurate information, maintaining the security of their passwords and other data, and complying with the T&C.
- Acceptable Use Policy: Detail what constitutes acceptable and unacceptable behavior on the website. This can include prohibitions on illegal activities, spamming, interference with your systems, use of malware and bots, and misuse of the website’s content (in a way that infringes on your or others’ intellectual rights or constitutes other illegal activity).
- Licenses; Intellectual Property: Protect your rights to your intellectual property (such as website content) by outlining what use of your content is and isn’t allowed. For example, you can prohibit visitors from copying your content manually or using web crawlers on your site for any reason, including for machine learning purposes. If users can upload or create their own content on your website, you may be interested in securing the right to use it for your own legitimate purposes.
- Disclaimers: Include a disclaimer stating that the service is provided “as is” without warranties of any kind. This helps to limit your liability for issues beyond your control.
If you provide mortgage services, you should also include a disclaimer clarifying that while your website provides general information about the services you offer, any user’s actual eligibility for a specific mortgage product is subject to your final review and approval process.
You might also want to disclaim any responsibility for third parties’ online practices (this may be necessary if your website has third-party integrations for online commerce or user portals).
- Limitation of the Website Owner’s Liability: Limit the website owner’s liability for damages arising from the use of the website, including from actions and content of other website users. This section can also include disclaimers for indirect, incidental, or consequential damages.
- Indemnification of Website Owners by Website Users: Indemnification is a legal concept where one party agrees to compensate another party for any losses or damages that may occur. Essentially, it means that if something goes wrong, the party providing the indemnity (the indemnifying party) will cover the costs or damages incurred by the other party (the indemnified party). By introducing an indemnification clause, you can require website users to compensate you for any claims, damages, or expenses arising from their use of your website.
- Modifications: Consider stating that you are entitled to revising your T&C at any time in your sole and absolute discretion and that continued use of your website means the user’s consent to the current version of your T&C. With that in mind, you can add that users should occasionally check your T&C for updates.
- Governing Law: Specify the laws of which jurisdiction will govern the T&C in case of a legal dispute. This can be especially important if you do business across national borders.
- Arbitration Clause: You might want to specify that any disputes arising from the use of the website will be resolved through arbitration rather than litigation. This can help to resolve conflicts more efficiently, cost-effectively, in a confidential manner, and on the terms convenient to you.
- Separability Clause: The degree to which businesses can disclaim warranties or restrict their legal liability is not always absolute and can be subject to restrictions imposed by applicable laws. Consider including a clause stating that if any part of the T&C is found to be unenforceable, the remaining provisions will still be in effect.
- DMCA Policy: Websites that allow user-generated content must have a DMCA Policy. DMCA stands for “Digital Millenium Copyright Act,” which is the law that introduced this requirement. The DMCA policy is often included in the T&C.
The DMCA policy should include a description of (a) how copyright owners can submit a takedown notice if they believe user-generated content infringes on their copyright and (b) how the website will respond to such notices. The DMCA contains other requirements that website operators are encouraged to consider.
- Other Terms: Include other terms specific to your services and website.
Conclusion
Having a well-drafted Terms and Conditions document is essential for any website. It not only provides legal protection but also sets clear expectations for users. By including the sections outlined above, you can ensure that your T&C are comprehensive and effective. Always consider consulting with a legal professional to tailor the T&C to your specific needs and ensure compliance with applicable laws.