Terms and Conditions (T&C)

While not legally mandated, having a T&C agreement is essential for risk mitigation. The enforceability of the T&C hinges on its clarity, the manner in which it's presented, and the user's explicit consent.

• Unlike privacy notices, a T&C agreement is generally not legally required by a statute.

• Courts have consistently held that T&C agreements are valid and enforceable contracts, especially in e-commerce. The key is to demonstrate that the user had clear notice of the terms and gave their consent. This is why "clickwrap" agreements, where a user must click a box to agree to the terms, are preferred over "browsewrap," where the T&C link is just in the footer.

• Limitation of Liability: A well-drafted T&C can protect you from liability for a range of issues, from product defects to website malfunctions.

• Common Context: Direct commercial transactions.

• Implied Relationship: The conditions of a sale or purchase.

• Example Use Cases: E-commerce stores selling physical or digital goods, online booking services.

• Key Focus: Commercial clauses like payment terms, shipping policies, refund and return policies, and product warranties.

2. The "Terms & Conditions" Mindset (For E-commerce Sites)

• For an e-commerce site where the user is buying products, "Terms & Conditions" is the most precise and traditional choice.

• Primary Purpose: To form a legally binding contract for a transaction and manage the specifics of that commercial relationship.

• Key Clauses:

  • Payment & Pricing: How payments are processed, currency, and any taxes or fees.
  • Shipping & Returns: Policies for delivery, refunds, and exchanges.
  • Warranties: Defining what is covered and what is not for products or services.
  • Dispute Resolution: Clauses about arbitration or governing law.

"Terms of Use" vs "Terms & Conditions"

• Terms & Conditions (T&C): This term is traditionally associated with a commercial transaction. It's most commonly used for e-commerce sites, software-as-a-service (SaaS) platforms, or any site where money changes hands. The T&C lays out the specific terms of a sale, including payment, shipping, return policies, and warranties. It is about the conditions of a business transaction.

Recommendation:

• For e-commerce, membership sites, or any site with transactions: You should use "Terms & Conditions" because it more accurately reflects the commercial nature of the agreement.
• For a hybrid site (like a blog that also sells a single digital product): Use the more comprehensive title, "Terms & Conditions," and make sure the document includes both the transactional clauses (for the product) and the behavioral clauses (for the blog).

Terms and Conditions (T&C) for static site

For a static, informational site, a T&C agreement is not legally required by statute or case law. However, it is a highly recommended risk management tool. Unlike a transactional site, where the T&C forms the basis of the contract for a sale, a T&C for a static site focuses on intellectual property and user behavior.

• age requirements
• Intellectual Property Protection: A T&C is the primary legal mechanism for protecting your client's original content, whether it's text, images, or videos. It establishes that the content is copyrighted and prohibits users from copying, reproducing, or distributing it without permission.
  • trademarks
  • copyrights
• Limitation of Liability: It can be used to disclaim any warranties or liability for the information provided on the site. This is crucial if the site provides any kind of advice, whether it's medical, financial, or general-purpose. For example, a T&C can state that "the information on this website is for informational purposes only and does not constitute professional advice."
• Acceptable Use Policy: While there are no account logins, a T&C can still define acceptable user behavior. For instance, if the site has a blog with a comment section, the T&C can outline what is not allowed (e.g., hate speech, spam, copyright infringement) and reserve the right to remove comments or ban users. This can provide legal protection under the Digital Millennium Copyright Act (DMCA).

Key takeaway for a static site: The T&C shifts from being a core contract for a transaction to a powerful legal shield for the business's intellectual property and a tool for liability protection. The most common and sufficient way to present this is via a "browsewrap" agreement, as there is no user action (like a purchase or account creation) that can be linked to a clickwrap. The key, as we've discussed, is to make the link to the T&C "conspicuous" in the footer, as this is your best argument for a user having had reasonable notice.

Comparison to Physical brick and mortar stores

The concept of a T&C is alive and well in the physical world; it's just not a "clickwrap" agreement. A T&C is essentially a contract for a service or transaction, and a purchase at a store is a transaction.

• How it's handled: The T&C for a physical store is often communicated through a variety of "browsewrap" or "signage-based" mechanisms:
  • Return Policy: This is a classic example of a T&C. The sign at the register that says "No refunds on opened items" or "Store credit only" is a legally binding term of sale.
  • Credit Card Policy: Signs stating "We only accept cash for purchases under $10" or "No American Express" are also terms and conditions.
  • Disclaimers: Signs in a parking lot that say "Park at your own risk" or in a restaurant "Not responsible for lost or stolen articles" are attempts to limit the business's liability—the same function as a liability clause in a T&C on a website.

The enforceability of these physical T&Cs depends on the same "reasonable notice" principle as their digital counterparts. A sign has to be clearly visible to be considered a legally binding part of the transaction.