Entertainment & Intellectual Property Law

Terms and Conditions Policies: A Primer

A terms and conditions policy is a contract between the website owner and the user.  Importantly, the policy identifies the owner of the website’s content and allows for that content to be licensed to users.  The policy also (attempts to) limit an owner’s liability through disclaimers.

The key terms of a terms and condition policy include, disclosure language, a disclaimer of liability, a license of the content to third-parties, and restrictions on use of the site by visitors.  Suppliers of goods and services should also have a separate e-commerce policy that identifies the terms and conditions of each sale, any warranties (or disclaimer of warranties), delivery terms and any return policy.  These policies also identify the terms upon which goods and services are supplied to customers.  In fact, some payment providers require e-commerce terms and conditions before you can open a merchant account.

The enforceability of website terms and conditions policies has varied over the years.  Overall, courts have tended to enforce “click wrap” agreements as long as a user has been afforded an adequate opportunity to read the terms.  (Click wrap or click through agreements make the user click on a button such as “OK” or “I agree” to indicate your asset to the terms of the policy.)  Whereas, “browser wrap” agreements (polices found on the face of the website that do not require a user to indicate assent) have been found to be unenforceable in some circumstances.  Among the factors courts consider in determining the enforceability of these types of agreements, include whether the policy is easy to find on the site, accessibility of terms from all areas of the site, legibility, whether an approval button clearly indicated assent, whether legal notices were mixed in with the marketing message of the website and the user’s ability to retain an electronic or print form of the policy.

Cutting and pasting from existing policies may offer a quick fix, but such tactics only work if the terms are valid, enforceable and sufficiently relevant to your website.  What is relevant to a website posting general information about weekly happenings in a certain city may not be relevant to, or broad enough to protect, an e-commerce site.

For assistance in drafting your company’s terms and condition policy, or other end user agreements, please contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC at 205.777.9906 or sdavis@staceydavislaw.com