If your website has any interaction with website visitors, you need a terms and conditions agreement. Terms and conditions apply to various platforms, including eCommerce platforms, social media, blogs, or professional websites.
Unlike in privacy policies, you do not require, and it is not mandatory by law to have terms and conditions agreements. To have a terms and conditions page is a good business practice to help inform users of what they can and cannot do on your website.
Without a terms and conditions agreement, a lawyer can demonstrate how the lack of the agreement caused damages and losses to a web page user. If your conditions agreement is very generic or is improperly worded, it will be hard to use it to protect your business in court.
What are terms and conditions, and why should you have them on your website or mobile app?
Terms and Conditions Definition
It includes a definition and explanation of key terms used in the agreement. It outlines the web page owner's legal responsibilities and limitations for any damage, loss, or harm incurred during the website's usage.
Additionally, the terms and conditions agreement will outline the action taken against a web page user who goes against the terms. It also establishes the intellectual property rights of the web page owner.
Who Should Have Terms of Service and Why?
If there is a legal dispute, maybe a user making a claim against the web page, or the web page owner suing a user for abusing the site, the courts will use the terms and conditions to assess if the complaint is valid.
Therefore, it is important to make sure that every web page has a terms and conditions agreement. Additionally, terms and conditions should not be generic or copy and pasted from another web page. The web owner should ensure the agreement is legally binding.
What Should You Include in the Terms and Conditions Agreement?
Terms and conditions agreements can vary from one web page to the other. The variance can be due to the type of web page and the products and services it provides.
For instance, the terms and conditions agreement for an eCommerce platform can differ from social media.
However, even with the variance, there are some typical elements that you can expect in a terms and conditions agreement. These include:
Limitation of Liability
Terms & conditions agreements contain a warranty disclaimer that removes any liability from the web owner for errors found on the site's information.
Limitation of liability is a clause that informs the web visitor that the owner cannot be held responsible for any errors in the content presented. The condition terms also limit the owner's liability of ensuring that the information presented is accurate, complete, or suitable for a purpose.
If the website allows its users to comment or add content to the website, e.g., blog or content sharing site, the clause limits the owner's liability on content shared. According to the condition terms, the website owner is not held accountable for any user's offensive posts.
The website owner does not endorse a third-party post on the website, and it doesn't represent their opinion.
The terms and conditions agreement should also contain a copyright clause to protect the website owner's intellectual property.
As the website owner, you own the logo, the site's design, and the content, excluding the user-generated content. The conditions terms should make it clear that content users post on the site is theirs.
As you generate the terms of service (TOS), you should include a copyright notice including the current year that informs users that you are the owner of the web content. It should also state that the international copyright clause protects the content. Any use of the trademark, design, or web content without the website owner's express permission amounts to infringing the copyright, and you can sue the person.
Set the Governing Law
The terms and conditions agreement should also include a governing law clause that refers to the jurisdiction that the terms of the conditions operate.
For instance, if your site is operated by a business registered in the United States, in Texas state, the governing law of your TOS will be:
The terms and conditions are governed by the United States of America laws and the Texas state laws.
If your website is operated by a company registered in London in the United Kingdom, your governing law clause will be:
The laws of the United Kingdom govern the terms and conditions.
You should also detail circumstances and actions that would be classified as abuses of the site and their consequences. This is especially crucial where users can post content on the site or contact other users.
The TOS act as a legally binding contract between you and the website visitor. It sets the rules that every user or visitor must agree to use your site or mobile app.
Therefore, the agreement should include relevant sections to inform users of the consequences of using your site or mobile app. It should also contain what the users should expect if they are abusing the site or mobile app.
Examples of actions that can be regarded as an abuse of the site or mobile app include posting defamatory content, spamming other users, and trying to infect the website or app with malware.
You can also include a clause to inform users that you won't tolerate harmful language on your website.
Abusing the site can have the users temporarily banned from the website.
The terms of service agreement should contain a change clause which is a statement that states that the website owner has the right to change or modify the agreement at any time without reference to the users.
The statement should state that the user has the responsibility to check any amendments. However, some websites will put a notice on the site or send emails to users informing them of the changes.
Besides the above sections, e Commerce sites are required to add some more sections on their terms and conditions agreement. The sections help to minimize the liability of the eCommerce sites and enhance their protection. These sections include:
- Price: the legal documents should include a statement that prices are correct at the time of publication, but they can change before ordering. It should state that prices can fluctuate in a short period.
- Description disclaimer: you can include a disclaimer that while the site tries to ensure that product descriptions are accurate, there is no guarantee that they are error-free.
- Returns and refund policy: the terms and conditions agreement should state when returns are accepted, who will pay the postage costs, and when the customer can expect a refund.
Even with the best terms of service outlining what a visitor can and cannot do on the site, sometimes disputes are inevitable. You may find yourself in circumstances where a customer has taken you to court for a particular reason.
If it gets to the point that you find yourself in a dispute with a customer, the website visitor will have to prove that the visitor should have read and understood the TOS and agreed to them.
The click-wrap method means that when the user enters their details to access your website, they are required to indicate that they accept the user agreement. This can be done using a link to the terms of service in the registration or sign-up box. Ticking the box indicates that the users have read and agreed to the terms and conditions.