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- 4.1. Effective Date
- 4.2. Introduction/Purpose
- 4.3. Governing Law and Jurisdiction
- 4.4. Changes to Your Terms
- 4.5. Contact Details
- 4.7. Registration Requirements
- 4.8. Account Termination
- 4.9. Restricted User Behavior
- 4.10. Permitted Use of Content
- 4.11. Payment Rules
- 4.12. Disclaimers, Liability and Warranty
- 5.1.1. Header or Footer
- 5.1.2. Within Other Agreements
- 5.1.3. Login or Signup Screen
- 5.1.4. Checkout Screen
- 5.2.1. Clickwrap
- 6. Conclusion
- You offer goods and services, and
- Individuals or companies do business with you
If you don't have a ToU already, you should consider creating one if you:
- Have a website,
- Offer goods, or
- Offer services
- Acceptable Use Policy
- Terms of Service
- Terms and Conditions
- User Agreement
There are numerous benefits to having a ToU in place. Here are a few of them:
- Protect your intellectual property (IP) rights
- Terminate accounts and control unacceptable behavior
- Stop people from abusing your website
- Control which laws regulate the contract
- Limit your contractual liability
- Clear and easy to understand
- Reasonable (you can't place unreasonable obligations on either party)
- Agreed to (both parties have consented to the terms)
Make it clear what date your ToU is effective from. You should put this right at the beginning of your agreement, like Levi's does here:
Draft a clause that introduces your Terms. Remind people that they're using your website or services subject to the ToU and describe briefly the purpose of the agreement.
The tone and language you use depends upon your target audience. You can see how Etsy's is quite casual, which is fine since it represents that brand.
Governing Law and Jurisdiction
The clause should be easy for a lay person to understand.
The Body Shop defines its governing laws in just two sentences:
Here's an even simpler example from Waterstones:
Changes to Your Terms
Tell customers that you reserve the right to update and change your terms. Let them know how you'll alert them to any changes you make. By telling the customers about the changes, you're giving them a chance to withdraw from the contract, which keeps it lawful and reasonable.
Here's an example from Etsy. The company will take reasonable steps to notify customers of any changes. It's on the customer to actually read the new Terms, and f the customer keeps using the service, this can be deemed as acceptance:
Etsy uses a banner notification sometimes to let users know as soon as they visit the website that changes have been made to the Terms:
This is one of many great ways to let users know about your updates and changes.
You must make it easy for individuals to contact you, whether it's by post, email, telephone, or live chat. The more options you provide, the better.
Origin Fitness, for example, gives customers three options:
Here's how Etsy sets this out:
If applicable, you should set out legal requirements for who can register for an account. You should also explain that individuals are responsible for protecting their own passwords, and for keeping their account information accurate.
DeviantArt sets its registration requirements out over two clear and concise paragraphs. You will see that it's up to individuals to safeguard their own accounts and keep them secure:
Here is where you can note any restrictions you have for members, such as age limits.
Set out ground rules for when you might terminate someone's account, and reserve the right to do so. This prevents users from arguing that you closed their account without a fair reason. Reasons can include, for example:
- At the customer's own request
- Extended account inactivity
- Using the account to conduct fraudulent or illegal activity
You can also inform users how they can go about terminating or deleting their own accounts, and let them know what will happen to their information or content upon termination on either end.
Here is how The Body Shop addresses account termination:
Restricted User Behavior
- Users are responsible for their content
- No one can use your website for unauthorized commercial purposes
- Using the platform to bully, harass, or intimidate is strictly prohibited
DeviantArt sets this all out very clearly. The ToU gives just enough detail without being overwhelming:
Permitted Use of Content
Be clear about your rights over user generated content.
- What content is unacceptable
- What you can do with user generated content
Keep what falls under "unacceptable" content broad so that you can take action quickly without justifying your reasons, like Etsy does. "Otherwise offensive" covers a huge range of content, which is a great strategy:
If you run an ecommerce platform like Etsy, you must be able to share and promote content to help the platform - and the individual creators - grow:
Finally, set out that you'll delete user content if it violates your ToU. Here's a straightforward clause from Instagram:
Set out your payment and subscription charges clearly and specifically, if this applies to you. Be clear about:
- When and how you collect payments
- What happens if a payment is missed
- What happens when any free trials end
- How someone can cancel their subscription
Let's look at Netflix. First, it sets out the free trial rules:
Then, it lays out billing information, including payment cycles and payment methods:
And, finally, it outlines how users can cancel their subscription and notes that no partial refunds are given. Price changes are also mentioned:
Disclaimers, Liability and Warranty
It's crucial that you restrict your contractual liability where possible. You should limit liability for problems such as, for example:
- Malware and viruses
- Information inaccuracies
- Third party actions
A general disclaimer clause might look something like Etsy's:
Not only can this save you money in legal costs, but it also helps you resolve disputes quicker. Below are some disclaimers to have.
You can't - and shouldn't - claim that your website will always be available. You also shouldn't be responsible for any damage that customers suffer should you suspend or terminate your platform.
Here's how Etsy handles this:
Ensure that, so far as the law permits, users can't hold you liable for any losses they suffer as a result of using your website.
Since it's extremely difficult to exclude all liability, you should set a maximum amount that users can sue you for e.g. $100. The amount should be proportionate depending on your business and the types of losses that users may incur.
Let's look at DeviantArt's clause that sets out a lot of this information in a general, boilerplate way which is very, very common to see:
It's possible to exclude liability for implied warranties (and, sometimes, express warranties) through your ToU. Express warranties include specific promises you make to users.
Implied warranties, on the other hand, include an item's fitness for purpose, its safety, and your labelling accuracy. Since not all jurisdictions exclude implied warranties, it's worth remembering that these clauses are not always enforceable.
However, using Twitter as an example, here's what a clause might look like:
You shouldn't be held liable for any harm caused to others by user generated content.
For example, if you're sued by User A over something User B said or did, User B should hold you "blameless" and cover your legal costs. In other words, they must indemnify you.
Here's a very straightforward clause from Etsy:
- Users know that it exists, and
- Users agree to be bound by its terms
Header or Footer
You can display a link to your ToU within your website's header or footer. This is a great place to include your Terms because users can view it whenever they wish, and they look here often for important information and legal agreements.
Here's an example from the BBC:
Within Other Agreements
Login or Signup Screen
Before users buy something from MyProtein, they can review the Terms and Conditions from the convenient, easy-to-find link:
And that brings us to consent.
The two main ways to obtain consent are through browsewrap or clickwrap, but only clickwrap is recommended.
- Publish your ToU somewhere obvious,
- Highlight the ToU at frequent opportunities e.g. at the checkout or at account registration, and
- Include a clause, such as a clause in your ToU, stating that browsing the site is deemed acceptance of the ToU
However, not all courts are quick to enforce browsewrap agreements these days, especially with new levels of consent being required by laws such as the GDPR.
Clickwrap agreements are easier to enforce because there's no feasible way for users to claim they didn't know about the ToU. You should use them before asking users to enter a contract e.g. before they go through the checkout.
- Which laws apply
- The ToU's legal status
- Contact details
- Links to other policies
- How changes are communicated
- Warranties, availability, liability, and indemnity
- Payment rules
- User behavior and content rules
- Account registration and termination rules