Every website needs Terms and Conditions, and every website owner should hire a top-tier Terms and Conditions lawyer to prepare them. Here is a brief explanation.

What are Terms and Conditions for a Website?

In brief, a website’s Terms and Conditions are the contract that governs use of the website by its users. Most often, users of a website agree to the Terms and Conditions implicitly by using the website and its services. Many times, though, a website will require users to explicitly agree to the Terms and Conditions. Terms and Conditions are valid and enforceable whether the user’s agreement is implicit or explicit. However, if implicit agreement is the basis of the agreement, then some extra steps are necessary. For example, the statement forming the implicit agreement must be prominent — on the first page and NOT requiring a “scroll down” — and links to the Terms and Conditions should be prominent and numerous — that is, contained on many pages.

What Should be in My Website’s Terms and Conditions?

A website’s Terms and Conditions should be long and detailed. As noted, you really need the help of experienced internet law attorneys to properly and completely draft your Terms and Conditions. Terms and Conditions protect the owners of the website. Generally, Terms and Conditions should include the following provisions:

• Rules about user behavior
• Regulations with respect to user-uploaded content (if allowed)
• User license provisions — how are users allowed to use the content provided on your website?
• Intellectual property provisions — these include provisions about how users can use your content (such as your copyright material), but also prohibitions against the infringement of intellectual property owned by others along with rules, regulations and restrictions on uploading intellectual property (if uploading is allowed)
• Termination provisions — allowing the website to terminate user accounts or service for reasons including violation of the Terms and Conditions
• Privacy statements and notices — if your website collects ANY information about your users — such as credit card account numbers and addresses — you must provide legally sufficient notices and obtain consents for such collection, use, sharing, sale, storage and deletion of such data
• Contact information — many State laws now require that users must have a method of contacting the website’s operator via mail and by phone
• Limitations on damages — for example, limiting your website’s legal liability for matters like viruses, spyware, inaccuracies and errors, damage caused to devices, damage caused by the user or third parties, etc.; limitations on damages are important to protect the website owners from legal liability
• Disclaimers of warranties — these are disclaimers of warranties; examples include a disclaimer on a legal information website that the information is NOT legal advice and that NO attorney-client relationship is created by use of the website; disclaimers are important to protect the website owners from legal liability
• Choice of Law and venue provisions — which State law will govern the Terms and Conditions and in what forum can disputes be brought?
• Effective date and users bound by amendments/updates

Contact Revision Legal

For more information or if you need help with drafting Terms and Conditions, or if you have other legal issues related to internet law, contact the trusted internet lawyers at Revision Legal.You can contact us through the form on this page or call (855) 473-8474. We are lawyers specializing in internet law.

Arbitration Clauses and Class Action Waivers: Critical Provisions Often Missing from DIY Terms

Among the most consequential provisions in a website’s Terms and Conditions are the dispute resolution clause and class action waiver. A well-drafted mandatory arbitration clause, requiring that disputes be resolved through binding individual arbitration rather than litigation, can prevent class action lawsuits that can threaten the financial viability of even large businesses. The Supreme Court has consistently enforced arbitration clauses in consumer contracts under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., including the class action waiver component validated in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

However, arbitration clauses must be carefully drafted to be enforceable. Courts have refused to enforce arbitration clauses where the agreement was procedurally or substantively unconscionable — for example, where the arbitration process imposed prohibitive costs on consumers, where the clause was buried in a way that consumers had no reasonable opportunity to notice it, or where the clause was so one-sided as to be oppressive. An experienced internet law attorney drafts arbitration clauses that are enforced, not challenged and struck down at the moment you need them most.

Privacy Policy Integration and State Privacy Law Compliance

A website’s Terms and Conditions should be coordinated with — and cross-reference — a separate, detailed Privacy Policy. The Privacy Policy governs the collection, use, sharing, and deletion of user data. Multiple state privacy laws now impose specific requirements on what a Privacy Policy must contain and what rights it must provide to users. California’s Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA), requires businesses that meet certain thresholds to provide a “Do Not Sell or Share My Personal Information” link, a “Limit the Use of My Sensitive Personal Information” link, and detailed disclosures about data retention periods and the categories of third parties with whom data is shared.

Virginia, Colorado, Connecticut, Texas, and several other states have enacted their own comprehensive privacy laws, each with different threshold requirements, consumer rights, and compliance deadlines. A generic Privacy Policy template that was compliant in 2020 may now be inadequate under multiple applicable state laws. Annual reviews of the Privacy Policy and its integration with the Terms and Conditions are no longer optional for any website with a national user base.

Intellectual Property Protection Provisions

A website’s Terms and Conditions should clearly establish the website’s ownership of its content and the limited license granted to users. Without these provisions, users may argue that they have implied rights to reproduce, modify, or distribute the website’s content. The Terms should also address user-generated content: if users can upload content to the platform, the Terms must include a license grant from users to the website to host and display that content, and should address the website’s rights to use user-generated content in marketing and other contexts.

Equally important are the provisions that prohibit users from uploading content that infringes third-party intellectual property rights. Combined with a properly maintained DMCA registered agent, IP infringement prohibitions in the Terms help establish that the website takes reasonable steps to prevent infringement — a factor that supports safe harbor protection under the DMCA and may reduce exposure in contributory infringement claims brought by copyright holders whose content appears on the platform.

Governing Law, Forum Selection, and Venue

The choice of governing law and forum provisions in Terms and Conditions can have significant economic consequences. If a dispute arises, the governing law provision determines which state’s law applies to interpret the contract and assess liability. The forum selection clause determines where any litigation must be filed. For a website headquartered in Michigan, for example, a provision designating Michigan law and Michigan courts as the exclusive forum means that a user in California who wants to sue must file in Michigan — a substantial practical deterrent to litigation. Courts generally enforce forum selection clauses in commercial contexts, and the Supreme Court has confirmed their enforceability in consumer contracts when properly disclosed.

Contact Revision Legal for Website Terms and Conditions Drafting

A website’s Terms and Conditions are the first line of legal defense for every dispute involving a user, a competitor, or a regulator. Generic templates cannot address the specific legal risks of your business or comply with the specific requirements of applicable state and federal law. Revision Legal’s internet attorneys draft comprehensive, enforceable Terms and Conditions tailored to your website’s operations and your state compliance obligations. Call us at 231-714-0100 or visit our contact page. You can also learn more about our Terms and Conditions legal services.