Website terms and conditions (T&Cs) are the primary contracts between web-based companies and their customers or website users – they can establish agreements on many issues, including use of private information, dispute resolution, and intellectual property. In their Daily Journal article “Businesses of All Sizes Should Keep Website Terms Up To Date,” Karl Kronenberger and Liana Chen discuss the common types of website T&Cs, as well as what to include and exclude from a website agreement.
One common type of T&C is a browsewrap agreement, which generally seeks to impose contractual terms through use of the website, and doesn’t involve affirmative consent by the website user. In contrast, a clickwrap agreement requires users to affirmatively consent to terms, often by scrolling through the agreement and clicking a box that states “I Accept” or a similar phrase.
Though T&Cs depend on the type of website and business, there are several provisions that Kronenberger and Chen recommend all companies consider. These include terms concerning dispute resolution, intellectual property provisions, clauses prohibiting activity such as spamming and republishing, privacy policies, and industry-specific provisions. Kronenberger and Chen also note that certain terms should be omitted to ensure that the T&C can be enforced – these terms include gag clauses, liquidated damages clauses and clauses absolving all liability.
Kronenberger and Chen conclude by summarizing the best practices for implementing website T&Cs. “Make T&Cs and ‘I Accept’ language clear, concise and unambiguous; require scrolling through, and affirmative consent to terms; tailor terms to the business and location; comply with FTC guidelines, ROSCA, and other applicable laws; maintain organized records of changes and user agreements; and consult with experienced legal counsel before implementation.”
This entry was posted on Thursday, February 09, 2017 and is filed under Website Agreements, Internet Law News.