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What are terms and conditions?accept_terms_on_phone

Terms and Conditions (also known as Terms of Service and Terms of Use) are important agreements that outline the ways in which customers can use a company's product or service. While it is not mandatory, it is a good idea to have a Terms and Conditions agreement that outlines the rules and responsibilities of users and owners. Doing so gives you the right to terminate the agreement if the other party fails to comply with the terms. Terms and Conditions are often used in situations where business is being done online like online marketplaces, e-commerce store, SaaS platforms, or mobile app. If This gives companies the right to suspend a users account if they abuse the product or service in some way.


What should I include in my Terms and Conditions agreement?

The content of your Terms and Conditions agreement will depend on your business needs. Because businesses have different needs, each agreement will include different provisions. When deciding what to include, consider: what are users allowed to do and what are they restricted from doing? What are your responsibilities and what are theirs? How would you prefer to settle disputes?
Provisions that are common to Terms and Conditions across the board include:

  • Permissions: This outlines in explicit terms what the website, mobile app, or online store owner can do with information you post to or include on their digital asset.
  • Termination of services: This lays down the restrictions on how the website’s service may be used by the user and the circumstances under which a user will be banned from using the website's services or the user's account will be terminated or suspended.
  • Dispute Resolution - Arbitration: This states that if a legal dispute arises between the user and the business, the two parties must settle the dispute through binding arbitration, rather than through the court system. Most dispute resolution provisions now include mandatory arbitration clauses in order to prevent costly lawsuits.
  • Dispute Resolution - Class Action Waiver: This prevents the user from filing a class action lawsuit against the business in the event a dispute arises between the user and the business.
  • Dispute Resolution - Choice of Law: This provision specifies which state's (or country, if international) law applies in the event a legal dispute arises between the business and the user, no matter where the user where the user files the lawsuit.
  • Dispute Resolution - Forum Selection: This specifies in which state a user must file suit in the event a legal dispute arises between the business and the user.
  • Limitations of Liability: This provision limits the liability of a website, mobile app, or online store owner should there be a defect in the product or service purchased by the user, or if a particular obligation or requirement has not been met by the owner.
  • Payment: This outlines the ways in which payment must be rendered to the owner of the digital asset, including stipulations about frequency, acceptable forms, cancelation, and taxes. This provision may also disclose the actions the business will take in the event the user defaults on payment.
  • Intellectual property: Intellectual property concerns include but are not limited to trademark infringement, copyright infringement and ownership, and unauthorized patent use. This provision may also state that all intellectual property rights that arise through the user's use of the website's service or product are automatically assigned to the website owner.
  • Indemnification: This clause allocates risk between two parties. It outlines which of the parties will be responsible for any losses incurred during or as a result of their contractual relationship. Simply put, if something goes wrong during the course of the transaction, this provision allocates who will pay for whatever costs arise from that wrong.

Terms & Conditions on Biteable.


Terms and Conditions FAQ 

Get answers to frequently asked questions about Terms and Conditions.

[fa icon="plus-square"] Who needs a terms and conditions?
Everyone who initiates or completes business transactions on their website, online marketplace, e-commerce store, SaaS platform, or mobile app should have a Terms and Conditions agreement. Transactions include signing up for an app, paying for its services, ordering from a marketplace, purchasing goods or services, or anything that requires an exchange between one or more parties.

While a Terms and Conditions agreement is not mandatory, any business that transacts with users or customers should have one. Unlike a privacy policy, which is required under the GDPR if you are collecting personal information from users, a Terms and Conditions agreement is often at the discretion of the digital asset owner.
[fa icon="plus-square"] What is the difference between terms of service, terms of use and terms and conditions?

There really isn't a difference.  You can use any of these as the title of the terms on a website, or mobile app. The most important thing is what's in the agreement, not what it's called.

[fa icon="plus-square"] Can I use someone else’s Terms and Conditions?
Although there are several provisions that are common to Terms and Conditions agreements, it is unwise to copy and paste another company’s online legal agreement.

Copying someone else’s Terms of Service agreements may actually leave you more vulnerable in court. Your Terms and Conditions agreement outlines the ways in which users will interact with your unique business, product, and service. If you copy someone else’s agreement, you may be excluding crucial aspects of your Terms—like your forum selection clause or intellectual property rights.

For example, while most Terms of Service agreements include clauses about data collection, each company collects different information from their users, and each uses it differently. Additionally, businesses in different industries are subject to different regulations on what data they must collect and how they must handle it. An online marketplace for shoes will not collect the same information as a global marketplace, e-Commerce site, or a subscription-based SaaS company.
[fa icon="plus-square"] What makes a terms and conditions enforceable?
Typically, the courts judge whether or not your Terms and Conditions agreement is valid by looking at:
  1. How you presented your Terms to users (i.e., via clickwrap, sign-in-wrap, or browsewrap)
  2. Whether the user explicitly accepted the Terms
  3. Whether the user had actual or inquiry notice of the Terms
  4. The design and layout of the screen that contains the clickthrough Terms and Conditions.

Page design
Though it may seem inconsequential, the design of the page that contains your clickthrough Terms and Conditions is very important. This because the page design determines whether or not the user had actual or inquiry notice of your Terms and Conditions agreement.

A well-designed page makes it obvious that the website has Terms and Conditions agreement and that a user is agreeing to the Terms. A properly designed website does this by surrounding the accept button with language that indicates that clicking the button is akin to accepting the agreement. Furthermore, the agreement should either appear on the screen in a scroll pane or the language around the button or checkbox should include a hyperlink to the Terms of Service. Simply put, the notice of the agreement and the action that the button performs must be conspicuous and irrefutably obvious to the user.

Many online Terms and Conditions agreements have been held to be invalid in court due to poor page design and inconspicuous presentation of Terms.

Like traditional paper contracts, online contracts require a proper manifestation of acceptance in order to be held valid. Therefore, without acceptance, your Terms and Conditions agreement cannot be successfully enforced in court.

Therefore, you need to be able to maintain records that prove that a user accepted your agreement, what version of the agreement was accepted, and when the user accepted the agreement.
[fa icon="plus-square"] How Can I Collect Acceptance of my Terms and Conditions?
There are several ways to present your Terms and Conditions agreements to users. In order for your online agreements to be valid, users must accept the contract before they use your services, buy something from your store, and/or sign-in/sign-up for your app. And, as we stated above, you need to provide notice of changes to your agreements as they arise in order for your modified agreements to be valid.

Most people also present their Terms and Conditions as a hyperlinked text at the foot of their website. This way visitors always have access to it. Whether on websites, in a check-out flow, or while signing up for a service-related app, there are three main ways of forming online contracts, each of which utilizes a different way of manifesting assent:
  1. Clickwrap agreements: The user signifies her acceptance of the contract by clicking a button or checking a box that states, “I agree” (or similar language) after being presented with an agreement.
  2. Sign-in-wrap agreements: The user is notified of the existence of the contract and is advised that by signing up (or a similar action), the user is agreeing to the contract.
  3. Browsewrap agreements: The user is notified of the existence of the contract by a link located somewhere on the screen, but the user is not explicitly required to signify assent.

If you are looking for a software solution to manage this, PactSafe can help.

[fa icon="plus-square"] What is the difference between a EULA and Terms of Service?

A EULA, or End User License Agreement is a legal document that generally presented after a purchase is made and before the end user downloads or installs software. It’s purpose is to protect a business's intellectual property from theft or misuse.  When a consumer agrees to the terms of a EULA, they are actually renting or buying a license from the software vendor.

Alternatively, a Terms of Service is a legal document that more widely covers expected user behavior and the rules for users when they use your software.  When choosing whether to use a ToS or EULA, one simple distinction whether you are offering a licensed copy of your software or whether you’re providing them with a service.

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