How Do I Write Website Terms and Conditions?

Ensuring your business has website terms and conditions, or ‘Terms of Use’, is essential for a number of reasons. These terms can help protect your business against liability and prevent conflicts and misunderstandings with your website users. Unlike business terms and conditions, website terms and conditions apply specifically to those who use and visit your website, even if they do not purchase your products and services. This article will discuss the key considerations and clauses you should include within your website terms and conditions.

1. Get Consent

Start by getting your users to agree to the website’s terms and conditions. Without consent, you may be unable to enforce your website’s terms of use and limit your liability. However, simply displaying your website terms and conditions is insufficient. You should consider including a clear checkbox that visitors to your website have to agree to.

2. Explain What the Website Terms and Conditions Cover

The website terms and conditions should govern a person’s use of your website and not the actual purchase of goods or services. If you provide goods or services in your business, you should have separate Terms and Conditions that customers must accept before they purchase goods or engage you for services. 

You should also let users know that:

• the terms are subject to change without notice; and
• they should check the site regularly to be aware of the current terms.

3. Privacy and Data Protection

Include a clause that states that you take your privacy obligations seriously. In particular, you should specify which customer information and data you will retain and what will be permanently deleted. For example, you need to outline:

• a link to your privacy policy if you have one; and
• whether you use cookies.

To keep your website users satisfied and to avoid liability, you should be sure that your website and any data you collect are handled according to relevant laws.

4. Intellectual Property Protection

Protecting your intellectual property should be a priority when writing your website terms and conditions. You will need to include a term which protects your intellectual property, such as:

• copyright;
• designs, illustrations, and artwork;
• trade marks; 
• logo rights; and
• domain names.

The clause should make it clear that anyone using your website does not have a right to: 

• copy;
• use;
• display;
• sell;
• publish;
• reproduce; or 
• redistribute your website, its contents or your intellectual property without your prior written consent.

5. User Obligations

You should let users know what they can and cannot do on and with your website. This protects you should a user or competitor misuse the website or be in breach of these obligations. 

Some obligations to include are:

• not using the website for unlawful purposes;
• not sending unsolicited electronic messages via the website;
• stopping users from using the website to the detriment of others, such as tampering with the website, breaching others’ privacy, harassing other users or transmitting viruses;
• specifying what content users can upload, how you may use this content and an assurance from the user that its content does not infringe third-party rights; and
• a notice that the website is for personal and non-commercial use only.

6. Website Disclaimer and Reducing Your Liability

A website disclaimer relates only to legal liability and should be drafted to reduce your liability when problems arise. You should outline which liabilities you will take responsibility for and those that you will not. 

Some things you may not want to take responsibility for are:

• how secure the site is;
• the site’s content;
• use of the site;
• whether the site will be up to date;
• whether the site is free from interruption or viruses; and
• if your website contains links to third-party sites, the content and security of those third-party sites.

7. Specify Which Laws Govern the Terms of Use

You should include a clause that:

• tells users which state or territory’s laws will apply to the terms and conditions; and
• acknowledges that the website may be accessed internationally and that you do not make any representation that your website complies with any overseas laws.

8. Third Party Sites

Your terms should make clear that your website may contain links to websites operated by third parties and that you take no responsibility for the content of those sites. If your website publishes affiliate links, you can include a clause in your terms that makes clear that you may receive a benefit (e.g. a commission or fee) when users visit those third-party links and purchase products or services on those sites. 

9. Complaint Procedure and Customer Service

You can avoid disputes by having a decent internal complaint procedure. Communicate this in your terms and conditions so people know: 

• who to contact within your business; and 
• what to do when things go wrong.

Tips When Writing Your Website Terms and Conditions

1. Customise Your Website Terms and Conditions

Your website terms and conditions must be tailored to your business’ intended purpose and the goals of your website. You should consider the problems and risks of somebody using your site or trading with you online. 

Consider what you intend to do (and not do) with your site. Then, ensure these uses are reflected in the website terms and conditions. For example, suppose you provide property information on your website. In that case, you will want to ensure you make clear that the purpose of your site is to provide property information only. Otherwise, it is the individual’s responsibility to conduct due diligence and not rely on the information provided to make decisions, as their circumstances have not been considered. 

2. Style

You need to write your website terms and conditions in a clear and understandable manner. You need to be professional but not over-complicate things. Ensure your terms are balanced and fair to your users without including unreasonable expectations on the individuals using your site. 

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3. Use Sub-Headings in Your Website Terms and Conditions

You should structure the terms and conditions by breaking them up into several sub-topics, as these are much easier on the eyes. These can include topics like:

• privacy;
• intellectual property;
• user conduct;
• prohibited conduct;
• governing law;
• third-party sites (and links);
• limitation of liability; and
• complaints.

4. Review the Website Terms and Conditions Regularly

You should regularly review your website terms to ensure they reflect changes in the law. You should also revise the terms when any significant changes occur to your business so that the purpose and particular clauses remain relevant and current. 

If problems arise which you had not foreseen in your business, you should amend the website terms and conditions. Do not hesitate to regularly update them based on feedback from users of your website.

Key Takeaways

Getting website terms of use right does not have to be a difficult and cumbersome task. This document involves many different terms which are essential to ensure your business is legally protected. If you would like to speak with a lawyer to get assistance in preparing your website terms of use, our experienced contract lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.