How to write your terms and conditions

Co-authored by Clinton M. Sandvick, JD, PhD Updated: August 15, 2019. (https://www.wikihow.com/Write-Terms-and-Conditions)

 

Terms and conditions are a set of rules and statements that possible users of your service will have to follow and agree to if they wish to use the service. Establishing terms and conditions is an important aspect of business, and any time you are providing a service to other people or organizations, you should require their acceptance of your terms and conditions. In order to write good terms and conditions, you will have to understand when they are useful, what types of provisions will apply to your situation, where they should be located, and how they will be accessed. Once you have a good grasp of your personal situation, you will begin writing the various provisions and clauses that will make up your terms and conditions. Follow the directions below to create a personalized set of terms and conditions.

 

Part 1

Preparing to Write Your Terms and Conditions

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    Determine if you have the need for terms and conditions. If you are going to offer a service and that service will be available to a large number of people, you should consider drafting and implementing a series of terms and conditions. Some of the most common services people and companies offer that lend themselves well to terms and conditions include websites and mobile phone apps. These types of services are also available to the public at-large, which makes the use of terms and conditions particularly useful. If the service you are offering will not be available to a large number of people (e.g., consulting or other types of employment type relationships), consider using a more traditional and individualistic contract instead of terms and conditions. Some of the most common reasons for having terms and conditions include:

    • Protecting your business.[1] Simply put, if you do not specify terms and conditions, you put yourself at risk of user uncertainty and misunderstanding.[2]
    • Preventing abuses.[3] Terms and conditions are legally binding and can therefore act to prevent users of your service from abusing or misusing that service.[4] The terms and conditions will lay out the guidelines of using your service, as well as what will happen if they do not follow your guidelines.[5]
    • Owning your content.[6] The content you provide users will likely be yours and you will want to protect that content from theft or misuse.[7] Terms and conditions are a great way to convey that to your users.
    • Limiting liability.[8] Nobody is perfect and you are bound to have errors in your content.[9] Terms and conditions are a great way to warn your users that you will not be held responsible for such errors.[10]
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    Assess the types of provisions you will need to include in your terms and conditions. Depending on what type of service you are providing, you will want to tailor your terms and conditions so they protect your particular situation. Terms and conditions are an incredibly powerful tool and you want to make sure you get the most out of them. For example:

    • If you are collecting personal information from your users (e.g., credit card information, names, addresses), you will need to include a privacy policy that discusses how that private information will be used, stored, and disseminated.[11]
    • If you are offering users accounts or subscriptions, you should be sure to explain the rules of those accounts and subscriptions, including how they can be terminated if abused.[12]
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    Decide where your terms and conditions will be located and how they will be accessed. The last step in preparing to write your terms and conditions is contemplating where the information will be located and how users will access it.[13] This is important to consider before you write your terms and conditions because your answers to these questions will dictate how the terms and conditions will be written.

    • Think about putting your terms and conditions in a location that is easily accessible, possibly even in a position where users are required to access it.[14]For example, if your service is a website offering goods to buy, you may want to have your terms and conditions pop up as soon as a new user accesses your website for the first time. If you are doing this, you will want to format your terms and conditions with a clear and enticing title and initial statement so users will want to read it.
    • Think about requiring your users to actively accept your terms and conditions before they can use your service.[15] For example, require your users to click or check off a box that says “I Have Read and Accept the Terms and Conditions” before they are allowed to use your website or other service.[16]

Writing Your Terms and Conditions

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    Start with a statement regarding the acceptance of your terms and conditions.Your very first paragraph should always be an acceptance of terms clause.[17] This clause ensures that your users understand that by using your service they are accepting the terms and conditions.[18] Always put this in bold, uppercase, and large font.

    • Consider using the following language: “By accessing and using this service, you accept and agree to be bound by the terms and provision of this agreement. In addition, when using these particular services, you shall be subject to any posted guidelines or rules applicable to such services. Any participation in this service will constitute acceptance of this agreement. If you do not agree to abide by the above, please do not use this service.”[19]
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    Include a privacy statement if necessary. If your service involves the collection and retention of users personal information, you will need to include a privacy statement.[20] This clause will set out how a user’s private information will be used and when, if ever, their information will be disseminated to others.

    • A privacy policy will usually be in-depth, and therefore may be rather long. It should include a definition of the information being collected, how it will be used, and how it will be protected.[21]
    • For an example of a complete privacy policy, look here.
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    Disclaim the accuracy of any information you are providing. This provision will protect you from as much legal liability as possible for any mistakes or errors that may be present in your service.[22]

    • If your service is a website, consider using language like: “This site and its components are offered for informational purposes only; this site shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the site, and shall not be responsible or liable for any error or omissions in that information.”[23] This type of provision will help you protect against liability in case a user relies on your information and it causes a problem.[24]
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    Add an intellectual property rights provision. If you have intellectual property associated with your service and that intellectual property is available or visible to your users, you should include a clause informing users that you are the owner of that property.[25] Some of the potential property you may want to protect includes logos, designs, and content you created.[26]

    • If necessary, include a provision that looks like this: “The Site and its original content, features, and functionality are owned by [Owner of Website] and are protected by international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.”[27]
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    Disclose your advertiser relationships. This type of provision will generally apply to your service if it is a website with advertisements on it. If you are in this category, you will want to include a statement about the advertisements and whether you are being compensated to provide that endorsement.[28]

    • If you are being paid to provide the advertisements, you are required by law to state that in this provision.[29]
    • Even if you are not being paid, it may be a good idea to provide your users with a brief statement about your advertising policy, including that you take your reputation and credibility very seriously and that you only endorse products you believe in.[30]
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    Set out a payment policy. If you offer a service that users will pay for, include information on the acceptable methods of payment, how those payments will be processed, and how the return or refund process works.
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    Include a statement about the delivery of goods. If you are offering a service that includes shipping goods to your users, you will want to include a statement about the responsibility you and others hold regarding that delivery.[31] If you use a third party delivery service, make sure your users know that as soon as that third party takes possession over their product you are no longer responsible.[32] Also consider a statement about the possibility of late deliveries and how they will be handled.[33]
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    Use a termination clause if necessary. If you require registration or account creation prior to allowing access to your service, you should always include a section in your terms and conditions discussing how those accounts can be terminated if they are abused.[34]

    • If necessary, consider including a provision stating: “We may terminate your access to the Site, without cause or notice, which may result in the forfeiture and destruction of all information associated with your account. All provisions of this Agreement that, by their nature, should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.”[35]
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    Add a notification provision. When aspects of your services change, it may be necessary to change your terms and conditions to reflect those changes. It is therefore necessary to include a notification provision in your terms and conditions notifying your users how you will handle changes to the terms and conditions.

    • An acceptable notification provision may look like this: “The company reserves the right to change these conditions from time to time as it sees fit and your continued use of the site will signify your acceptance of any adjustment to these terms. If there are any changes to our privacy policy, we will announce that these changes have been made on our home page and on other key pages on our site. If there are any changes in how we use our site customers’ Personally Identifiable Information, notification by email or postal mail will be made to those affected by the change. Any changes to our privacy policy will be posted on our site 30 days prior to these changes taking place. You are therefore advised to re-read this statement on a regular basis.”[36]