Any site that has any form of interaction with its users, whether eCommerce, blog, social media, or professional, should include a terms and conditions page within it. This article defines terms and conditions, explains why it is important and provides examples from well-known websites, which demonstrate good practice in this regard.
What are terms and conditions
Terms and conditions is a page on a website which sets out the rights and responsibilities of anyone using the site. It effectively forms a contract between the site and the user.
Terms and conditions often include an explanation or definition of key terms used in the terms, and outlines the legal limitations of responsibility of the website owner for any damages or harmed incurred during usage of the site. It will include what action may be taken against a user who breaks the terms and may also detail the intellectual rights of the website owner.
Who needs terms and conditions and why
For this reason, it is important that all websites have terms and conditions. In addition, website owners need to ensure that it is sufficiently robust legally to both protect them, and to limit their liability, should they ever face or instigate legal action.
What to include in terms and conditions
While the exact contents vary depending on the nature of the site and the services it provides, terms and conditions will typically include the following elements:
Limit of Liability
Also known as a disclaimer, this removes any responsibility for errors in the information on the website. If the website allows users to comment or add content to the site (e.g. on a blog or content sharing site), then it should include a section that removes any accountability for posts that may be considered offensive. It is sensible to also state that any third party content on the site is not endorsed by the site owner, and is not indicative of their opinion.
Whether the site sells products, services, or shares information, it should have a copyright notice that includes the current year. This section should inform users that all content, logo, and branding are the intellectual property of the site owner.
Country of governance
Where the website or business is based, and therefore the country whose laws govern the terms and conditions.
Abuses of the site and consequences: the actions or circumstances that would be classed as abuses of the site, and the consequences for such actions should be detailed. This is more relevant where users are able to post content or are able to contact other users.
The statement that the site owners have the right to modify or change the agreement, without reference to the users, at any time. It should state that the responsibility for checking any amendments is that of the site user, although some sites will send e-mails or add a notice to the website stating that they have altered.
Of course, the complete terms and conditions agreement will be much more extensive and cover many other aspects of how you run and operate your site and business.
In addition to the above sections, eCommerce sites are advised to incorporate a number of other sections. These include:
- Description disclaimer - many sites include a disclaimer that states that while they attempt to ensure that all product descriptions are accurate, there is no guarantee that they are error-free.
- Price - a statement that prices are correct at the time of publication but are not guaranteed until the time of ordering as they may fluctuate even during short periods of time.
- Returns and refunds policy - under what circumstances returns will be accepted; who is responsible for paying postage costs; and when clients can expect to receive a refund.
How to create terms and conditions
As creating terms and conditions may seem like a complicated process, it may be tempting to simply copy and utilize another site's terms, but website owners should resist this temptation. Every business and website are different and, while another site may seem similar, the fact is that their terms may not provide your business with adequate protection. Their terms of service may be poorly written or unenforceable, or copying them could be seen as a copyright infringement if they are classed as part of the site's intellectual property. As has been discussed above, as the terms of service form the legal basis of the site's relationship with the customer, it is not worth the risk for website owners to leave themselves unprotected. In the same way, terms and conditions template will also fail to provide adequate legal protection and so should also be avoided.
A far more secure and reliable method of producing suitable terms and conditions is to use a website that generates custom-tailored policies based on the user's responses about their business. Website Policies is one such website. Their policies are created by specialist lawyers, then populated with the information provided by the user to create a personalized and relevant policy that will protect the site and its owners, at an affordable cost. Once created, it can be downloaded immediately, ready to be added to the website.
How to enforce terms and conditions
Should the worst happen, and a website owner finds themselves in dispute with a client, they will need to prove that the user should have been aware of the terms and conditions and had agreed to them.
While different organizations locate their terms and conditions in different areas, the most widely recommended way of ensuring that users are unable to claim that they have not read or accepted terms and conditions, is through what is known as the 'click-wrap method'. This simply means that when a user enters their details, they are required to indicate that they agree to the terms and conditions. There is usually a link to the said terms and conditions in the registration or sign-up box so that ticking the box is also seen to indicate that they have also read them.
Examples of terms and conditions agreements
These extracts from the terms and conditions agreements from international, well-known websites will help to demonstrate what constitutes an effective agreement. It is useful to note that, in each case, the language used to explain the policy is clear and straightforward, avoiding legal jargon that people may not understand.
Twitter provides different, regionally appropriate, terms and conditions for the United States of America, and elsewhere in the world. This section details its liability relating to content posted by users. Due to the nature of the site, this is a particularly important section to ensure that Twitter avoids legal action.
You are responsible for your use of the services and for any content you provide, including compliance with applicable laws, rules, and regulations. You should only provide content that you are comfortable sharing with others. Any use or reliance on any content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. All content is the sole responsibility of the person who originated such content. We may not monitor or control the content posted via the Services and, we cannot take responsibility for such content.
This section is a particularly wide-ranging and comprehensive disclaimer relating to the content users may post and find. It lays out several key points in a very clear manner:
- The user alone is responsible for anything they post
- Twitter does not support, endorse, or verify any content posted
- If the user finds any material that is inappropriate for any reason, Twitter accepts no responsibility for such material being on the site.
LinkedIn refers to its terms and conditions as the user agreement. This section lays out the obligations and responsibilities of its users.
As between you and others, your account belongs to you. You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., connections, groups) and (4) follow the law and the Dos and Don'ts below. You are responsible for anything that happens through your account unless you close it or report misuse.
LinkedIn is a particularly good example of a terms and conditions agreement, as it provides a summary of the points contained in detail in the paragraph so that users are absolutely clear about the content of the section. There is no room for misinterpretation even if the user chooses not to read the full text.
This section of YouTube's terms and conditions agreement lays out the terms under which users are permitted to utilize the site.
2.1 In order to use the Service, you must firstly agree to the terms. You may not use the Service if you do not accept the terms. 2.2 You can accept the terms by simply using the Service. You understand and agree that YouTube will treat your use of the Service as acceptance of the terms from that point onwards.
2.3 You may not use the Service and may not accept the terms if (a) you are not of legal age to form a binding contract with YouTube, or (b) you are a person who is either barred or otherwise legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service.
2.4 You should print off or save a local copy of the terms for your records.
This section clearly outlines that using the site - whether as a registered user or not - is deemed acceptance of the terms of service. It also provides itself with protection by laying the responsibility for complying with local laws prohibiting access due to age or location, firmly with the user.
Amazon attempts to be as accurate as possible. However, Amazon does not warrant that product descriptions or other content of any Amazon Service is accurate, complete, reliable, current, or error-free. If a product offered by Amazon itself is not as described, your sole remedy is to return it in unused condition.
This section plainly states that while it attempts to ensure the reliability of product descriptions, Amazon accepts no responsibility for any inaccuracies. This is unsurprising for a site as large as Amazon, which lists millions of items. Again, it makes clear that it is at the client's discretion if they wish to keep a product that does not entirely match their expectations.
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