Taken mostly from the Termerly Website: https://termly.io/resources/templates/terms-and-conditions-template/  - fiuclinic.org is an educational and noncommercial site that uses this type of content to supplement seminars given as part of a law school clinic.

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Website Terms & Conditions

A Terms and Conditions agreement outlines the rules that your website or mobile app users must follow. They usually cover topics such restricted behavior, payment terms, acceptable use, and more that we cover below.

What Is a Terms and Conditions Agreement?

A terms and conditions agreement outlines the website administrator's rules regarding user behavior and provides information about the actions the website administrator can and will perform. Essentially, the text is a contract between the website and its users.  In the event of a legal dispute, arbitrators will look at it to determine whether each party acted within their rights.

Creating the best terms and conditions page possible will protect your business from the following:

• Abusive users: Terms and Conditions agreements allow you to establish what constitutes appropriate activity on your site or app, empowering you to remove abusive users and content that violates your guidelines.


• Intellectual property theft: Asserting your claim to the creative assets of your site in your terms and conditions will prevent ownership disputes and copyright infringement
.

• Potential litigation: If a user lodges a legal complaint against a website, showing that the user was presented with clear terms and conditions before they used the site will immensely help in court.

In short, terms and conditions give you control over your site and legal enforcement if users try to take advantage of your operations. Is a Terms and Conditions Legally Required on My Website?

Technically, no. You aren't legally required to have a terms and conditions agreement.  However, having terms and conditions for websites is considered a standard business practice.

Reasons to Have a Terms and Conditions

• To Set Liabilities Limits

Almost every terms and conditions agreement has a warranty or limitations of liability disclaimer.  We'll cover it in more detail in our section about what clauses to include in your terms and conditions, but this clause essentially limits what customers can hold you liable for.

Most companies restrict liability for:


• Inaccuracies and errors
• Lack of enjoyment
• Product or website downtime
• Viruses, spyware, and product damage
• To Outline Policies and Avoid Abusive Behavior

Many companies use their website's terms and conditions to lay down the rules that users must agree to and follow before accessing your website or service.

Most of these rules revolve around how users should interact with others and what they can and can't post or do.


• To Terminate Abusive Users' Accounts

Your terms and conditions agreement is also a great place to list when and why you can terminate the accounts of abusive users.  Most companies, for instance, will ban users if they're using the platform or site for illegal activities, bullying other users, and unauthorized web scraping.


• Keep Others From Copying Your Content

Another reason for having a terms and conditions agreement is to disclose and protect your intellectual property rights.

Adding an intellectual property disclosure clause to your terms and conditions text informs users of your intellectual property rights, such as your logos, content, and other protected ideas and marks.

If you catch your users copying your content, you can take legal action against them since your terms and conditions agreement is legally binding.


• To Outline Governing and Applicable Laws

Finally, you should have a terms and conditions agreement to inform users which federal or state laws - or both - govern your agreement.

If a dispute arises between you and your user, the court will use the governing law to interpret the terms and conditions agreement and its effects.

Where to Post the Terms and Conditions

Once created the terms and conditions agreement should be displayed in a prominent area of the website or app.

Here are the top six places to put your terms and conditions:

• Inside Current Legal Policies

Link your terms and conditions in other legal documents on your site, such as your End-User License Agreement (EULA) or privacy policy.

Since users typically read all of your site's legal notices in one go, these links will make it easier for them to understand what they're agreeing to by joining your site.


• Informational Menus or Sections

Placing your terms and conditions in informational menus and sections throughout your site will remind users that they can read your terms and conditions at any time.  It will also make it easier for them to access your website's terms and conditions as needed.


• Website Footer

Most companies put their terms and conditions in the footers of their sites.  So that's where visitors typically expect to see a link to your site's terms and conditions.


• Banners and Pop-Ups

You should also put a link to your terms and conditions on a pop-up or banner that appears whenever users access your site for the first time.

This placement will give you an advantage in the event of a legal dispute because you can demonstrate that you showed the user your website terms and conditions before they started using your service.


• During Sign-Up

Another great place to link to your terms and conditions agreement is during the sign-up process.

As with banners and pop-ups, placing a link to your terms and conditions during the sign-up process will give you an advantage in court.


• During Checkout

Last but not least, you should link your terms and conditions during checkout.  Doing so will shield you from legal and financial risk, particularly if your terms and conditions have detailed pricing disclosure and site support clauses.

For example, let's say you run a laptop store and accidentally send a customer the wrong item.  You can point to your site support clause to cancel the order to avoid miscommunications and liabilities.

How To Enforce the Terms and Conditions Agreement

In most jurisdictions, including the US, and the UK, you need clear evidence that users have read and consented to your terms and conditions.  That's why you should consider clickwrapping your terms and conditions.

Clickwrap forces users to manually click a button or checkbox to indicate that they've read and accepted your terms and conditions before they can use your site or service

• How to create a click wrap agreement


• It is not enough to include a static text in a registration or check that reads "by clicking below you agree to our terms".  You will actually need a hyperlink to a separate page containing the terms so that they can be updated as needed.


• The website should include a version control feature that creates a record of which version of the agreement was accepted when the user clicked the box indicating acceptance and the ability to recapture consent after agreements are updated


• It is ideal to renew the contract agreement at every new purchase or transaction to make absolutely sure that each transaction is covered by your legal terms.  This can be achieved with a simple "you agree" statement right below the 'Place your order' button as shown below




• Request renewed acceptance whenever the agreements are updated or changed.  For example AirBnb requires each member to agree to the revised terms before they can access their account:


• Consider how you want to manage click wrap agreements:


• Hyperlink


• Host the business's terms and conditions online by create a hyperlink allowing the users to read the terms and conditions on a separate web page which can be update when necessary.


• Scroll box


• Alternatively, the site can include the click wrap agreement in a scroll box for users to tick a box as acceptance.


• In this instance, users must scroll through the terms and conditions before they’re able to tick the box.


• Due to more stringent requirements, a scroll box click wrap agreement is more suitable for circumstances where businesses are at greater risk


• Clickwrap Best Practices


• Display the agreement in a clear way before letting people access your site, app, or software


• Make them agree to the terms before giving them the chance to register or create an account


• Have customers agree to terms before making a purchase


• Remove any questions about whether someone is agreeing or disagreeing to the agreement


• Tell people that agreeing to the terms creates a legal contract


• Put up a dialog box if people try to use your site without clicking to agree to the terms, notifying them they can't continue


• Types of evidence needed to enforce clickwrap agreements


• Screenshots: A screenshot is an image that displays what a screen looked like at the time of signing. Courts often rule in favor of terms on a page designed to provide actual or inquiry notice to a user. As a result, if the screen design is poor, the screenshot tends to sway the court towards not enforcing the terms. On the other hand, if the screenshot shows that the screen is optimally designed, the court is highly likely to rule in favor of enforcing the terms.


• Affidavit/declaration from key personnel: Affidavits or declarations are written statements or sworn testimony from key personnel familiar with the contract acceptance process. A declaration is more likely to be successful when the person providing it has pertinent knowledge of the system being described and/or is in a role that familiarizes them with the contract acceptance process.


• Back-end records of acceptance:  Back-end records are records that contain data captured at the time of contract acceptance.  This data indicates who accepted an agreement, when the agreement was accepted, and what version of the agreement that was live at the time of acceptance.  When used as evidence to try to compel arbitration, back-end records are most successful when they showcase specificity and a high level of detail - that is, that a particular user signed a particular agreement at a particular time

Information To Include in the Terms and Conditions

Terms and Conditions agreements contain a broad range of guidelines for how you and your users can use your service or site.  Even short terms and conditions agreements should include several vital clauses to safeguard your business.  Otherwise, the website's terms and conditions agreement will be incomplete, exposing the owners of the site to many legal risks. Here's what should included in the terms and conditions agreements to prevent such misunderstandings and others:

• Introduction

The terms and conditions agreement should start with an introduction that lets users know they're reading a terms and conditions agreement.

It should also mention that anyone using the service, platform, or site must follow the terms.

Here's an example of how Apple introduces its Terms and Conditions:


Ownership of Site; Agreement to Terms of Use
These Terms and Conditions of Use (the "Terms of Use") apply to the Apple web site located at www.apple.com, and all associated sites linked to www.apple.com by Apple, its subsidiaries and affiliates, including Apple sites around the world (collectively, the "Site").  The Site is the property of Apple Inc. ("Apple") and its licensors.  BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE.

Apple reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time.  It is your responsibility to check these Terms of Use periodically for changes.  Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.  As long as you comply with these Terms of Use, Apple grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.



• Governing and Applicable Laws

As touched upon above, the site needs to establish what national or state law governs the agreement between the site and the users.  Most companies choose the law of their state or country or the country where users access their site or app.

Most governing law clauses are short and straightforward.  Here is a sample from the Spotify website:.


Governing law, mandatory arbitration and venue
"These Terms are governed by and shal be construed in accordance with he laws of the State of California, United States of Americ, without regard to California's choice or conflicts of law principles.  Further, you and Spotty agree to the jurisdiction of the federal and state courts located in "Northern California, California, to resolve any dispute, claim, or controversy that relates to or arises in connection with these Terms or the Spotty Service that is not subject to mandatory arbitration under the Arbitration Agreement below, and waive any jurisdictional, venue or inconvenient forum"objections to such courts


• Disputes and Indemnification

You should establish that if someone were to distribute your website or its products/services, it would get handled by the proper courts or arbitration.

Outline that you have a right to and will use appropriate legal counsel


• Contribution Clause

If your site or application allows users to create content, you should include a contribution clause telling users what rights they have to the content they create through your application or website.

Contribution clauses can be quite lengthy, particularly if the platform allows users to create many types of content and join different community activities, such as contests and media programs.

For example, YouTube's contribution clause -which they call "Your Content and Conduct" - has eight sections for addressing the following:


• * Uploading content
• * Rights you grant to YouTube and other users of the service
• * License to YouTube
• * License to other users
• * Duration of licenses you grant
• * The right to monetize
• * How to remove your content
• * How YouTube can remove your content

Here is sample text from YouTube's site:


Uploading Content

If you have a YouTube channel, you may be able to upload Content to the Service.  You may use your Content to promote your business or artistic enterprise.  If you choose to upload Content, you must not submit to the Service any Content that does not comply with this Agreement (including the YouTube Community Guidelines) or the law.  For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so.  You are legally responsible for the Content you submit to the Service. We may use automated systems that analyze your Content to help detect infringement and abuse, such as spam, malware, and illegal content.

Rights you Grant

You retain ownership rights in your Content.  However, we do require you to grant certain rights to YouTube and other users of the Service, as described below.

License to YouTube

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube's (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

License to Other Users

You also grant each other user of the Service a worldwide, non-exclusive, royalty-free license to access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Service (such as video playback or embeds).  For clarity, this license does not grant any rights or permissions for a user to make use of your Content independent of the Service.



• Third Parties

This clause tells users that you are not responsible for any third-party services or sites to which your site links.

You should also tell users that they are solely responsible for reading the legal policies, rules, and terms and conditions of third-party sites and services.

This is how Vox discloses third-party links:


Links
We may provide links to other Web sites or Internet resources for your convenience only, and such links do not signify or imply our endorsement of such other Web site or resource or its contents over which we have no control and which we do not monitor.  You use those links at your own risk and should apply a reasonable level of caution and discretion in doing so.  You agree that we shall have no responsibility or liability for any information, software, or materials found at any other web site or internet resource.

We may also integrate With third parties who will interact with you Under their terms of service, One such third barty/is VouTube'and by Using the Sites or Services, You agree to be bound by the YouTube Terms of Service located here


• Disclaimer and Warranty

A disclaimer states that your site is available on an "as-is and as-available basis" and that users use it at their own risk.

Essentially, this clause states that you are not responsible for any damage that your service, product, or website may potentially cause a user.

This is an example of a disclaimer warranty from the popular video game Minecraft:


10, DISCLAIMER OF WARRANTY.  The application is licensed "as is* "with all faults" and "as avallable You bear the entire rsk as to its quality, safety, comfort, and performance.  Should it prove defective, you assume the entire cost of all necessary servicing or repair.  The application publisher, on behalf of itself, Microsoft, wireless cariers over whose network the application is provided, and each of our respective affiliates, vendors, agents, and suppliers (Covered Parties", gives no express warranties, quarantees, or conditions in relation to the application.  You may have additional consumer rights under your local laws that this agreement can't change.  To the extent permitted under your local laws, Covered Parties exclude any implied warranties or Conditions, including those of merchantability, ftness for a particular purpose, safety, comfort, and non-infringement.  If your local laws impose a warranty, guarantee or condition even though these terms do not, its duration is limited to 90 days from when you download the application.



• User Registration

If the site allows users to create user profiles, add a user registration section.  This section will limit the site owner's liability by reminding users that:


• Their user credentials should always be kept confidential.
• They are responsible for keeping their usernames and passwords safe from others.
• They need to contact you immediately if their credentials get stolen, or they believe someone has gained unauthorized access to their accounts.



• Acceptable Use

An acceptable use clause outlines what user actions and behaviors are acceptable, including following other policies and terms.

It also outlines what may be inappropriate and what actions you may take if a user does not comply.  You can further outline this in the "Prohibited Activities" and "Suspension and Termination" sections (discussed below).

Check out how the popular travel app Hopper informs users of acceptable use:


1.  Acceptable Use.  You may use the Apps and the Hopper Services only for lawful personal use, and in accordance with these Terms, to search for and make travel bookings and/or related purchases for yourself, or non-commercial on behalf of a person who has authorized you to do so.  Hopper may, in its sole discretion, terminate your right to use the Apps and Services at any time, and may take all available legal recourse for actual or suspected violations of these Terms, including cancellation of bookings made in violation of these Terms.  Any delay by Hopper in taking such actions does not Constitute a waiver of Hopper' rights to enforce these Terms, By making the Apps and Services available for your use, Hopper does not consent to act as your agent or fiduciary.


• Prohibited Activities / Restrictions

Explicitly listing prohibited activities is another way to stop visitors from misusing your site.

This section should include a special clause regarding user-generated content in forums and comments so you can remove offensive usernames and posts.

If your company has extensive user guidelines, you can create a separate user guidelines page and link to it here.  For example, that's what Spotify did.  To give you a better idea of what this section should address, here are some of the prohibited activities in Spotify's User Guidelines:


• Removing or changing any trademark, copyright, or any other intellectual property notice
• Using any other user's username or password
• Posting user content or registering usernames that are abusive, pornographic, offensive, obscene, discriminatory, or advocate violence
• Using Spotify for illegal activities
• Using the service to expose proprietary or confidential information of a third party or yourself that's not intended to be shown to the world
• Copying or importing local files that you don't have the legal rights to copy or import
• Scraping or crawling, whether by automated means or manually, to access, view, and collect information
• Reverse-engineering, dissembling, decompiling, modifying, or creating derivative works unless this restriction is specifically prohibited by applicable law
• Blocking advertisements or creating or distributing tools for blocking advertisements



• Term and Termination

A term and terminations section protects you from abusive users by giving you the right to suspend user accounts and delete any content they post.

This clause is particularly useful if you offer Software-as-a-service (SaaS) applications.

For example, Etsy has a termination clause that outlines the circumstances and consequences of termination either by Etsy or the user.  Here is the Etsy text


7.  Termination
Termination By You.  We'd hate to see you go, but you may terminate your account with Etsy at any time from your account settings.  You can find more information in this Help article, Terminating your account will not affect the availability of some of Your Content that you posted through the Services prior to termination.  Oh, and you's have to poy any outstanding bill

Termination By Etsy. We may terminate or suspend your account (and any accounts Etsy determines are related to your account) and your access to the Services should we have reason to believe you, your Content, of your use of the Services violate our Terms we do, It's important to understand that you don't have a contractual legal right to continue to use our Services, for example, to sell or buy on our websites or mobile apps.  Generally Etsy wil notify you that your account has been terminated of suspended, Unless you've repeatedly violated our Terms or we have legal or regulatory reasons preventing us from notifying you.

If you or Etsy terminate your account, you may lose any information associated with your account, including Your Content

We May Discontinue the Services Etsy reserves the right to change, suspend, or discontinue any of the Services for you, any oral users, at anytime, fo any reason, including those lid out in Etsy' policies under these Terms of Use.  We will not be liable to you for the effect that any changes to the Services may have on you including your income or your ability to generate revenue through the Services.

Survival.  The Terms will remain in effect even after your access to the Service is terminated, or your use of the Service ends



• Suspension and Termination

Explain when you can suspend and terminate users for inappropriate behavior.  Most companies will ban users for the following:


• Advocating violence
• Posting discriminatory, abusive, threatening, pornographic, or offensive content
• Using the platform or site for illegal activities
• Sending junk mail, spam, or chain letters
• Exposing another user's personal information, including username(s) and password(s)


• Limitation of Liability and Warranty

Every company that manufactures and sells products uses this clause to limit what customers can hold them accountable for.  Most startups will restrict liability for the following:


• Lack of enjoyment, since it's subjective and prone to change.
• Damage caused by viruses, spyware, or software damage.
• Damage caused by third parties.
• Modifications and interruptions - while you can include them as a separate clause as covered below, many companies choose to have it as part of their limitation of liability and warranty clause.
• Errors and inaccuracies - as with modifications and interruptions, you can choose to include errors and inaccuracies in a separate "corrections" section.  However, most companies choose to include it under this clause.

Also, remind customers from certain jurisdictions that these limitations of liability may not apply to them and that they may have additional rights.

Some jurisdictions, such as Quebec, have consumer protection laws that don't allow limitations of certain damages.

If your business is related to anything high-risk, consider having a specific section or disclaimer about this to protect yourself.


• Modifications and Interruptions

This clause limits your liability if users claim any loss or damage because they can't use your site.

It accomplishes this by giving you the right to change or delete anything on your site and states that users may encounter hardware problems and downtime.

Here's a good example - taken from our own Terms and Conditions - of how to phrase this section:


12.  MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the Content or the Services from time to time.  to comply with new laws or regulations or to update our offerings.  We also reserve the right to modify or discontinue all or part of the Services if Termly were to close down or if we decide to change Termly's business offering.  We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.

We cannot guarantee the Services will be available at all times.  We may experience hardware, software or other problems or need to perform maintenance related to the Services, resulting interruptions, delays, or erors.  We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services from time to time and will endeavor to give you notice of such changes.  You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services

Nothing in these Terms of Use will be construed to obligate us to maintain and support the Services oto supply any corrections, updates, or releases in connection therewith


• Corrections

We're all human.  If you make errors on your site, you need to remind users that you're not liable.  This section covers your back just in case there are any mistakes in your content, allowing you to update it with the correct information at any time.

Here's a great example from Termly's Terms and Conditions:


Corrections There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information,

We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.


• Site Management or Support

Add a site management or support clause to tell users how you run your site or service.  This clause will give users a better understanding of how your service works.

Companies typically include clauses that detail:

• When they provide updates
• When they monitor the site or service
• When they perform routine inspection or system administration
• Situations when they can refuse service or access to existing users and individuals
• When they provide the service (i.e., 24/7/365)
• When the help desk is available

If you offer complex services, you may want to include more clauses to explain how your service works.

For example, GBG - an identity verification and fraud prevention service provider - has a long site management or support clause that addresses the above as well as the following:


• * When they allow users to access reports on service usage
• * How long they maintain old versions of the web service interface
• * How fault reporting works and when process updates occur
• * How service restoration works for different service levels


• Pricing

If your service sells memberships or products, you need to include a section on how you charge customers.

Use phrases such as "as available" for services and "as provided" for items to lower the chances of disputes.

To demonstrate that you are dedicated to transparency, you also need to list:


• How you will handle transactions.  For example: How long does it usually take to ship items? Or, how can customers get refunds?
• All shipping costs.  Consider linking to your shipping policy if you're running out of space.
• Acceptable payment methods.


• Deliveries

If products or services are delivered, outline specifics like what happens if:


• There are shipping delays
• Products get damaged during shipping
• Packages get stolen after delivery
• Services are faulty


• Returns and Refunds

This section can be included under the pricing clause or be on its own.  It should outline under what circumstances a customer may receive a refund (if at all) and what form of payment they may receive money back (product replacement, cash refund, site or store credit, etc.)

You can also include what happens in the case of damaged and defective goods or services.


• Intellectual Property Notice

An intellectual property notice tells users about your intellectual property rights, such as your copyrighted and trademarked logos, photos, copy, and other protected ideas and marks.

This section is pretty straightforward and doesn't need to be lengthy.

Simply state that by agreeing to your website terms and conditions, users are agreeing that:


• You own these marks and ideas.
• They will not sell, modify, rent, loan, share, or distribute your content in any way.
• They will not use your material in any manner except for noncommercial, personal uses.


• Digital Millennium Copyright Act Notice and Policy

Your website's terms and conditions should also explain the rules the website administrator will abide by.

This section specifies that you will remove any material that infringes users' copyright according to the Digital Millennium Copyright Act.


• Contact Information

Finally, you need to inform readers how they can reach you if they have any questions or concerns about your service and policies.

Most companies include at least two contact methods, which can include:


• Email address
• Online chat service
• Postal address
• Email address
• Telephone number
• Fax number


• Privacy Policy

A privacy policy must live as a separate document, but it's sometimes part of the terms and conditions.

It keeps you in compliance with governments' privacy laws and prevents you from being fined.