A Terms and Conditions agreement is the agreement that includes the terms, the rules and the guidelines of acceptable behavior, plus other useful sections, to which users must agree in order to use or access your website and mobile app.
What are Terms and Conditions
Terms and Conditions are a set of rules and guidelines that a user must agree to in order to use your website or mobile app. It acts as a legal contract between you (the company) who has the website or mobile app and the user who access your website and mobile app.
It’s up to you to set the rules and guidelines that the user must agree to. You can think of your Terms and Conditions agreement as the legal agreement where you maintain your rights to exclude users from your app in the event that they abuse your app, and where you maintain your legal rights against potential app abusers, and so on.
This type of legal agreement can be used for both your website and your mobile app. It’s not required (it’s not recommended actually) to have separate Terms and Conditions agreements: one for your website and one for your mobile app.
You can use this agreement anywhere, regardless what platform your business operates on:
- WordPress blogs or blogs on any kind of platform: Joomla!, Drupal etc.
- E-commerce shops
- Mobile apps: iOS, Android or Windows phone
- Facebook apps
- Desktop apps
- SaaS apps
Desktop apps usually have the EULA agreement (End-User License Agreement) instead of a Terms and Conditions agreement, but your business can use both. Mobile apps are increasingly using Terms and Conditions along with the EULA if the mobile app has an online service component, i.e. it connects with a server.
What to include in a Terms and Conditions
In your Terms and Conditions, you can include rules and guidelines on how users can access and use your website and mobile app.
Use the Terms and Conditions Generator to create the Terms & Conditions agreement.
Here are few examples:
- The Intellectual Property disclosure will inform users that the contents, logo and other visual media you created is your property and is protected by copyright laws.
- A Termination clause will inform that users’ accounts on your website and mobile app or users’ access to your website and mobile (if users can’t have an account with you) can be terminated in case of abuses or at your sole discretion.
- A Governing Law will inform users which laws govern the agreement. This should the country in which your company is headquartered or the country from which you operate your website and mobile app.
- A Links To Other Web Sites clause will inform users that you are not responsible for any third party websites that you link to. This kind of clause will generally inform users that they are responsible for reading and agreeing (or disagreeing) with the Terms and Conditions or Privacy Policies of these third parties.
- If your website or mobile app allows users to create content and make that content public to other users, a Content section will inform users that they own the rights to the content they have created.The “Content” clause usually mentions that users must give you (the website or mobile app developer) a license so that you can share this content on your website/mobile app and to make it available to other users.Because the content created by users is public to other users, a DMCA notice clause (or Copyright Infringement ) section is helpful to inform users and copyright authors that, if any content is found to be a copyright infringement, you will respond to any DMCA takedown notices received and you will take down the content.
- A Limit What Users Can Do clause can inform users that by agreeing to use your service, they’re also agreeing to not do certain things. This can be part of a very long and thorough list in your Terms and Conditions agreements so as to encompass the most amount of negative uses.Here’s how 500px lists its prohibited activities:
Here’s how the Terms of BBC informs that trademarks, design rights and other intellectual properties belongs to BBC:
BBC clearly mentions that all content belongs to BBC:
4.1 Rights in BBC Online Services and BBC Content
All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) in and on BBC Online Services and BBC Content belong to the BBC and/or third parties (which may include you or other users.) The BBC reserves all of its rights in BBC Content and BBC Online Services. Nothing in the Terms grants you a right or license to use any trade mark, design right or copyright owned or controlled by the BBC or any other third party except as expressly provided in the Terms.
If you operate a SaaS app, the “Termination clauses” will be very important. The relationship with your customers can end for any number of reasons, from a customer changing careers to a new and better SaaS option becoming available or just general dissatisfaction with a service.
But as the owner of the app, you should have a way to actively end a relationship with a customer under certain circumstances.
If you sell products (physical or digital), you’ll want Terms and Conditions for your store. Having the agreement in place will help you:
- Dictate how different aspects of transactions will be handled
- Inform users about acceptable payment terms
- Inform users about your shipping policies
- Inform users about your returns and refunds policies. You can also do this through a separate agreement, called a Return/Refund Policy, that you can reference in the Terms & Conditions agreement.
Let’s look at an example: the Limitation of Liability of Your Products clause.
No matter what kind of goods you sell, best practices direct you to present any warranties you are disclaiming and liabilities you are limiting in a way that your customers will notice.
You’ve probably noticed that these clauses in contracts are always in blocks of all-caps text and really do stand out from the rest of the document.
Apple iTunes, which probably isn’t dealing with high-liability goods, includes the following boilerplate language in its Terms agreement to deal with limiting liability and disclaiming warranties.
This exact language is used across multiple industries, businesses, and apps in order to legally disclaim warranties and limit liability.
Include the words “AS IS” for items and “AS AVAILABLE” if you provide any sort of service that may not be available 100% of the time. The final section is usually included verbatim as:
“…WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.”
Here’s a list of questions that can help you determine what to add in your own Terms and Conditions:
- Can users create an account on your website or app?
- Can users create or publish content on your website or app?
- Is the content published by users available publicly?
- Can users send you copyright infringement notices?
- If your website or app an ecommerce store?
- And so on
Before you publish the agreement online, make sure your Terms and Conditions includes important disclosures, such as:
- Termination of using or accessing your website or sections of your website to prevent abuses
- “Governing Law” disclosure to inform which country laws are governing the agreement
- Contact details to inform users how they contact you with questions regarding your legal agreements and its provisions
Is a Terms and Conditions required?
A Terms and Conditions is not required and it’s not mandatory by law. Unlike Privacy Policies, there’s no law or regulation on Terms and Conditions.
But having a Terms and Conditions gives you the right to terminate the access of abusive users or to terminate the access to users who do not follow your rules and guidelines.
It’s extremely important to have this agreement if you operate a SaaS app.
Here are a few examples how this agreement can help you:
- If users abuse your website or mobile app in any way, you can terminate their account. Your “Termination” clause can inform users that their accounts would be terminated if they abuse your service.
- If users can post content on website or mobile app (create content and share it on your platform), you can remove any content they created if it infringes copyright.Your Terms and Conditions will inform users that they can only create and/or share content they own rights to.Similarly, if users can register for an account and choose an username, you can inform users that they are not allowed to choose usernames that may infringe trademarks, i.e. usernames like Google, Facebook, and so on.
- If you sell products or services, you could cancel specific orders if a product price is incorrect. Your Terms and Conditions can include a clause to inform users that certain orders, at your sole discretion, can be canceled if the products ordered have incorrect prices due to various errors.
- And many more examples.
While a Terms and Conditions isn’t required by law, other platforms (especially those that you can create an app for) will often ask you for this agreement.
For example, Facebook asks for a Terms and Conditions for your app. This is required for the “Terms of Service URL” field when you submit your Facebook app for review:
How to enforce Terms and Conditions
While creating and having a Terms and Conditions is important, it’s far more important to understand how you can make the Terms and Conditions enforceable.
You can enforce this legal agreement in various ways, but it always depends on your website or mobile app and what functionalities you offer to users:
- Are you a simple, presentation-only website? In most simple websites or apps users can’t register or create content.
- Are you a user-generated content website or app? In these websites and apps, users can register an account and create or share content.
- And so on.
eBay uses two different notices to enforce their User Agreement page.
The footer of eBay has this text:
Because of the position and how it’s linked these are called browsewrap agreements.
However eBay gives more notice of their legal agreements to who register for a new account:
New users, in order to register for an account with eBay, must agree that:
- They agree that they may receive communications from eBay and can change the preferences in My eBay section of the web site
- They are at least 18 years old
This is called a clickwrap agreement, where there is a proper notice to users about some legal agreements before a user can do a certain action, i.e. register an account.