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Terms of Service, also called Terms & Conditions or “T&Cs,” are legal agreements that, in addition to others, such as a Privacy Policy, act as an online contract between the owner of a website or other web-based application and those who utilize it. Whether you operate an eCommerce website or some other business with an online presence, Terms & Conditions are necessary to protect your business adequately and bring with them a variety of legal considerations.

Terms & Conditions “Come In All Shapes & Sizes”

Depending on the type of business and website or app, a Terms & Conditions could include a range of clauses, such as those that protect intellectual property and provisions to limit liability, among a whole host of other potential clauses. There are more nuanced considerations besides just which clauses to include, such as which arbitration provider to utilize if there is an arbitration provision in the Terms & Conditions. Further, and in particular, in the age of the proliferation of artificial intelligence (AI) and associated legal considerations, ensuring that terms are inclusive of any AI-related processes is critical, as was illustrated by the backlash against Adobe and their terms lacking clarity in this regard. There are more niche aspects of a Terms & Conditions that require attention, such as the nuances concerning not barring consumer reviews and the cottage industry that has popped up trying to “pigeonhole” private actions via opaquely worded terms and the right of consumers to leave reviews. There is also the related scourge of ADA website compliance lawsuits that can be at least partially accounted for and mitigated to some degree via proper terms and conditions.

In addition to considerations about the contents of the Terms & Conditions, the specific architecture of how users consent to the terms plays a critical role in whether courts will find that there is an enforceable contract. It is also important to ensure that varying online terms, such as those specific to promotions like sweepstakes, align with the general terms, as was illustrated in the Coinbase sweepstakes case that went before the Supreme Court. These considerations help illustrate that while Terms & Conditions might seem mundane and meaningless legalese not requiring much attention, the opposite is true; Terms & Conditions play a pivotal role in protecting you and your business.

Is A Lawyer Required For Creating A Terms & Conditions?

In contrast to Terms & Conditions that an automated tool might generate, Terms & Conditions drafted by a lawyer are specific to your business and ensure that relevant and essential protections are in place. But, perhaps, even more importantly, a lawyer helps ensure that any disadvantageous terms are not included. A set of terms created online by a generator may contain such unwanted clauses, leading a business to unknowingly and unnecessarily increase its risk and not benefit from valuable protections. Astute drafting by a lawyer concerning where to include advantageous clauses and when to exclude those terms that might be disadvantageous is critical, as courts generally hold that Terms & Conditions correctly agreed to online are legally enforceable agreements, resulting in the potential for harmful clauses to be used against your business. In addition, there are several ways that Terms & Conditions and a Privacy Policy interact, and it is important that there is an understanding of the clauses in each agreement that correspond with each other.

At RICHT, we provide clients with an affordable way to protect their business with comprehensive Terms & Conditions specific to the nuances of their particular operations. We evaluate your business to understand how you can best account for and mitigate risk and then draft suitable terms and conditions.


Get Peace Of Mind Knowing You Are Protected With Robust Terms and Conditions Drafted By A Lawyer For Your Website Or App


MOST RISK
Why Not Use A Generic Terms of Service?
The Risks Of A Generic T&C
  • Lack of specific advisory and potential inclusion of overbroad terms that increase legal risk
  • Lack of understanding of what the terms mean for your business
  • Lack of assurance that the terms are up to date with the latest laws

Have an Existing Terms? We Can Review & Update To Ensure Comprehensive protection.

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Inquire About How A Terms & Conditions Lawyer Can Help


    Terms & Conditions FAQs

    At the most fundamental level, terms and conditions on a website or other online web application are legal documents that govern the contractual relationship between the provider of a product or service and a user. More colloquially, the terms and conditions “set the ground rules.” The terms aim to clarify the rights and responsibilities that govern the relationship between a particular entity and its users. Clarity goes a long way in avoiding confusion and, by extension, disputes, but should a dispute arise, the terms and conditions are also leveraged to ensure that it is clear how disputes are resolved with the goal of swift resolution.
    In some jurisdictions, there are legally mandated disclosures for certain kinds of businesses, making some form of terms and conditions potentially a legal compliance requirement. Even without a legal mandate, the most straightforward kind of business, such as a startup e-commerce store, can benefit from robust website terms and conditions. For example, the terms for an online store might include details concerning the conditions of sale, acceptable payment, shipping timelines, delivery responsibility, and order cancellation, refund, or exchange.
    A different name may refer to several variations of what is in substance a, terms and conditions depending on the exact use and purpose. For example, an end-user license agreement (EULA) generally refers to relevant terms for a software product, such as a software as a service (SaaS) offering.
    Put simply, a lawyer is generally not legally required to draft terms and conditions. That said, having a lawyer familiar with the practice area of online terms and conditions is, in many ways, the most protective in minimizing risk and maximizing legal protection. As discussed in other parts of this FAQ, alternatives such as online generated terms and conditions or copying terms from others each bring with them their own risks.
    For certain businesses, terms and conditions generated online might provide some protection. Still, the issue is that they might not be comprehensive, or there might be clauses that unnecessarily add risk, and therefore, using online generated terms and conditions may bring significant legal risk with it.
    Copy and pasting terms and conditions found on a website brings with it a variety of legal risks, including the potential for having clauses that should not be included for your business and the potential for claims of copyright infringement.
    Depending on the nature of a particular website, application, and the products and services offered, the clauses included in the terms and conditions will vary. For example, the terms and conditions of a social media platform will have clauses that differ in some respects from an e-commerce store. In both scenarios, though, similar clauses will appear throughout both terms and conditions. Some of the most common clauses found in terms and conditions include the allowable use of the content, including as it relates to copyright and trademark, acceptable use of the service or website, the guidelines that users must follow when interacting with others on the platform, as well as terms concerning when a user can be suspended or an order canceled. Other clauses are aimed at limitations of liability, indemnification, warranties or lack thereof, and dispute resolution, including as it relates to the potential inclusion of arbitration and class limitation clauses. The exact clauses to be included must be reviewed in light of the nature of the offering to ensure the terms are as protective as possible.
    A common question concerning terms and conditions is what they should include, but a less common but equally important consideration is what NOT to include. There is no singular answer to this complicated question; there will be different answers depending on the company in question and the relevant jurisdictions that must be accounted for. Still, key clauses and framing considerations should be accounted for when it comes to what should not be included. For example, laws in the United States do not allow restrictions on consumers leaving their honest views about their experience with a business. Therefore, ensuring that such restrictions are not present in terms and conditions is essential.
    Often placed near each other, the terms and conditions and privacy policies are similar in the minds of some, but they serve different purposes. Whereas the terms are more arbitrary and, in large part, not legally proscribed concerning their contents, a privacy policy is focused on fulfilling a variety of delineated legal requirements, including notice and transparency about the processing of personal information under laws such as the GDPR in the EU and state laws in the United States such as California’s CCPA as amended by the CPRA.
    While much of the focus of drafting terms and conditions concerns its contents, there are other critical considerations. Specifically, the technical placement and agreement dynamics (including the nuances of “clickwrap,” “checking the box,” and recordkeeping) of the terms and conditions can “make or break” whether particular terms and conditions are enforceable. Further, ensuring that updates are rolled out properly can also play a role in the enforceability of updated terms and conditions.
    Read more

    Terms & Conditions Law News

    Federal Trade Commission

    Quietly Changing Your Terms of Service Could Be Unfair or Deceptive

    It may be unfair or deceptive for a company to adopt more permissive data practices—for example, to start sharing consumers’ data with third parties or using that data for AI training—and to only inform consumers of this change through a surreptitious, retroactive amendment to its terms of service or privacy policy.

    Terms & Conditions Law
    Tech & Marketing Law Blog

    More Chaos in the Law of Online Contract Formation

    An overview of “the jurisprudential chaos” in online terms and conditions contract formation law. The two top-line takeaways are that a two-click formation process avoids risk concerning contract formation and hence enforceability, and, if amending online terms and conditions, maintaining an evidentiary record is essential.

    Terms & Conditions Law
    The New York Times

    TikTok Quietly Changes User Terms Amid Growing Legal Scrutiny

    Parents, schools and even attorneys general have increasingly been raising concerns about how TikTok may be hooking children to the app and serving them inappropriate content. But some lawyers say bringing legal action against the company could be more difficult after TikTok quietly changed its U.S. terms of service this summer.

    Terms & Conditions Law
    Social Media Law
    Engadget

    23andMe Frantically Changed Its Terms of Service to Prevent Hacked Customers From Suing

    Genetic testing company 23andMe changed its terms of service to prevent customers from filing class action lawsuits or participating in a jury trial days after reports revealing that attackers accessed personal information of nearly 7 million people — half of the company’s user base — in an October hack.

    Terms & Conditions Law
    Tech & Marketing Law Blog

    Amazon Screws Up Its TOS Amendments (Again)

    Is new affirmative consumer assent needed for each amendment to a Terms of Service (TOS), or can some vaguer “notice” to consumers sometimes substitute?

    Terms & Conditions Law
    Tech & Marketing Law Blog

    Court Says “You May NOT Amend Your TOS by Posting New Terms to Your Site”

    Courts have begun to require more rigorous evidence of notice and assent to enforce modifications to online agreements.

    Terms & Conditions Law
    Tech & Marketing Law Blog

    Poorly Executed “Sign-in-Wrap” Contract Formation Process Fails

    The Ninth Circuit recently considered when consumers assent to terms through interacting with a website. The court confirms that to ensure enforceability, consumers should (1) check the box and (2) be advised that checking the box will indicate assent to contract terms.

    Terms & Conditions Law
    Ironclad

    2022 "Clickwrap" Litigation Trends Report

    Understanding how the courts assess online agreements is a crucial way to protect your business from risk.

    Terms & Conditions Law
    Tech & Marketing Law Blog

    Amending Your TOS? Better Use a Clickthrough Process, Not Email Notice

    Mandatory clickthroughs for amendments are the new best practice, and email notices–even if worded optimally–are not best practice.

    Terms & Conditions Law

    Our Insights