Terms and Conditions Page

Making Your “Terms and Conditions” user friendly while still protecting your business

 

Terms of Use. Terms of Service. Terms and Conditions. You’ve probably never paid much attention to them, despite them being on every website you visit online. The problem with Terms of Use (TOU) is that they are difficult to read and understand, and if you really want to use the site, you have to agree to them anyway.

 

Simplify the language

Simplicity is great, but you have to be careful.  The Atlantic recently published an article on this very topic and used website 500px as a prime example. The website offers its legalese in a column on the left and a simplification in a column on the right, with the disclaimer that the latter column “is not legally binding.” This arrangement, while superficially elegant, does nothing to address the problem that exists regardless of form.  If your  user lacks comprehension, be it of the meaning of the rigid legalese or the legal implications that are lost when the terms are oversimplified simple language is not a solution by itself.

 

Clickwrap or Browsewrap?

Composing a good TOU is just half the battle, because a user still has to opt-in, be it through an active action or a passive one. A distinction can be made between “clickwrap” TOU that engage users through a positive action (requiring they “Accept” the terms or not) before accessing a destination or obtaining a product on your site.  The other – passive – type of TOU is a “browsewrap” TOU, which only exists as a hyperlink on the page allowing users to view terms and conditions, but not mandating that they do so.

 

Whether or not either of these avenues is legally binding can depend on what country you are in. In the U.S. Ninth Circuit case Nguyen v. Barnes & Noble, Inc. (2014), the user sued the bookstore for deceptive online business practices. The bookstore argued that the user could not sue because of an arbitration clause in the site’s terms. The court decided that  “the user was successful in arguing that they weren’t subject to the terms of use of a website that had a browsewrap agreement.”

 

However, in the Canadian case of Century 21 Canada Limited Partnership v. Rogers Communications Inc. (2011) (BCSC), browsewrap TOU were found to be enforceable against users. While it appears that non-prompting TaC may be legally binding in Canada, the very recent decision in Nguyen v. Barnes & Noble, Inc. and the otherwise complete lack of case law on this specific matter, especially in Canada, should suggest that it’s better to be safe than sorry—so be sure to clickwrap your shiny, new, and user-friendly TOU.

 

In the end, using simpler words, clear grammar, good organization and a clickwrap TOU can go a long way to engaging the user and increasing the chances that they will be bound by the terms and conditions presented.

 

As always Bullfrog Insurance is committed to helping entrepreneurs success.  That’s why we’ve partnered with Clausehound to bring you a library of expert-compiled legal frameworks.  To see a standard set of terms and conditions, visit their Small Business Law Library.

 

As well, be sure to visit the Bullfrog Blog often for more tips on marketing, sales and risk mitigation