Terms & Conditions
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What to Include in Your Terms and Conditions?!
Terms and conditions should always be drafted with the particularities of your business in mind.
The first step when thinking about drafting these terms should always be to identify the risks and liabilities associated with your business or website in order to better address them in your terms.
Here are some clauses which are considered standard in terms and conditions agreements.
General Conditions & Termination
It is your website, therefore you can decide how it should be used.
It is common to see terms and conditions which include a list of prohibitions or general guidelines to be followed by users. These can be broad, such as stating that your services are not to be used for illegal or unlawful purposes or that users must not try to breach or test the vulnerability of your network or circumvent security measures.
If your platform is collaborative, meaning users are invited to share such as on a social media network, you could have a separate page with community guidelines, which you could link to in that clause.
You can reserve the right to terminate the contract or disable user accounts should there be a violation of any of your terms, guidelines, and conditions by including a termination clause – this is very common in the case of websites and SaaS applications.
After all, you want to be able to take action should someone misuse your product. You may even take a step further an create a detailed acceptable use policy to go along with your terms.
Copyright & Intellectual Property
While having an intellectual property clause won’t guarantee that someone won’t copy your work, it can certainly act as a good deterrent.
It also helps having a copyright notice that confirms and warns your users that the content on your website is yours and is not to be reproduced or re-used without your express permission. It re-affirms that you hold trademarks and ownership over certain elements of the website itself and over the products that you sell and should be a no-brainer.
DMCA Takedown Process
It is common practice to include a clause that explains how you process and respond to DMCA takedown notices.
You don’t have to go into detail but you could summarize the important information, include a link to your contact form or email address, and link to your separate DMCA policy.
Products & Services
If you sell products online, you may wish to state that while you do your best to ensure that descriptions are accurate and colors adequately represented. You cannot be held responsible should there be discrepancies in size, shape, or colors with the products received by the customer as their computers may simply have been showing them differently.
The same goes for product availability. You could state that while you aim to ensure that a product for sale is in stock, you won’t be held liable if there was a mistake and a product is sold out, in which case you reserve the right to cancel their order.
Similarly, you should recognize that errors do happen and you could, for example, give yourself the right to correct wrong information, such as prices, and to cancel or refuse to process an order that was made based on that information.
Your business may evolve along the way, therefore you may wish to include a sentence stating that you may add or remove features, products, or services from time to time without any prior notice.
Limitation of Liability & Disclaimers
Limitation of liability disclaimers is one of the main reasons why business owners take the time to include terms and conditions on their websites. When reasonable and drafted adequately, such clauses can help protect your business against claims and lawsuits and limit the amount of money that you would have to pay in damages.
While you cannot exclude your liability for just anything and everything, you could, for example, state that you will not be held liable should your users not be able to use your website or your product. This is important, especially if you offer a service or platform on which businesses rely on in order to operate.
It is common to see clauses that state that a service or website is made available on an “as is” and “as available” basis which means that a user’s decision to use the service is taken at their own risk.
It’s a good idea to have a separate website disclaimer that explains this and other related clauses in-depth.
If you allow your users to share comments or photos on your website or leave reviews of the products that you sell, you will want to have a section in your terms that governs their conduct and sets out what is acceptable and what isn’t.
In this clause, you could reserve the right to monitor the user-generated content shared on your website and remove anything that goes against your guidelines. You could expressly ask your users not to post anything that contains obscene language or any material that could be considered harmful or violent or infringes on someone else’s copyright.
You could also make it clear that you reserve the right to suspend or delete the accounts of repeat infringers. This will help you make your website a safe space where people can feel comfortable sharing their opinions, which is especially important if you operate a news site, blog, or forum.
From a business point of view, you could reserve the right to use the submitted content for marketing purposes which a lot of big box stores and eCommerce retailers do in order to promote products that get rave reviews. It’s important for your customers to know that you plan on doing so, otherwise they could be surprised to see their words or photo used in a commercial!
Payment & Subscription Information
If you are selling products or services online, you may wish to specify the methods of payment that you accept, including your use of third-party payment providers if any (PayPal, Stripe, etc), and your payment terms.
Similarly, if you operate based on a subscription method, you should set out when payment will be taken and at what frequency.
Your customers should be able to refer to your terms to understand how they will be charged if they choose to cancel their subscription and when they will stop being able to access your website or services i.e. will it be immediately upon cancellation or will they have access until the end of the month.
If you offer a free trial period, you need to be clear with your users as to what happens at the end of that timeframe.
Will their credit card automatically be charged unless they cancel prior to the end date, and will it continue to be charged monthly unless they terminate their subscription? Will they still have access to what they have created during the trial period if they choose not to subscribe to your product or will their data be erased?
Writing this down in black and white can prevent bad surprises and, in the event that a customer is unhappy, you will be able to refer them to the terms and conditions that they accepted (provided of course that you diligently made sure that they were aware of them).
If you, from time to time, link to other websites, you may wish to include a clause that lets your users know that this does not imply that you are endorsing all content on the third party’s website and that you are not responsible for whatever happens when your users choose to follow a link and leave your website.
They should be considering the respective terms and privacy policies of these external websites.
Governing Law and Dispute Resolution
The beauty of the Internet is that it is far-reaching and accessible to people located across the globe. On the other hand, this can create a world of issues when disputes arise and need to be settled in court.
For that reason, you may wish to elect a governing law and a dispute resolution process. If your business is located in the state of California, you may wish to specify that any dispute that arises out of these terms and conditions or use of the website will be governed by the laws of that State.
You may also wish to subject all disputes to arbitration instead of going in front of the courts, in which case your users need to know so that they can make an informed decision before they start using your website or your product.
Any good policy should make it easy for users to contact the website or mobile application owner. Include your email and business address, as well as a contact form if you have one, and invite your users to contact you should they have any questions or concerns.