As a website owner, you want people to visit your site and make use of the information you provide. However, you also want to make sure that people using your site are using it appropriately and properly. Given your website is in the public domain, you should also ensure that you are properly protected from any potential liabilities or claims from people who are using your site.
The easiest way to achieve all this is to have clear and effective Website Terms and Conditions that set out what is expected of visitors to your site and also include various notices and disclaimers.
What should your Terms and Conditions include?
Here are the main aspects that you should cover in your Website Terms and Conditions. Bear in mind that depending on the nature of your website and business, there may be other factors that you should consider.
Agreement to be bound by these Terms and Conditions:
Start your Terms and Conditions with a statement that people using your website are bound by these Terms and Conditions. This is important as it ensures that users are on notice that they are bound by these provisions.
Limitation of Liability:
Protect yourself by limiting your own liability to the ‘maximum extent permissible by law’ for any loss or damage incurred as a result of using your website. There is specific language that you should use to ensure your limitation of liability is as broad as possible – this language is generally known as precedent language and is used in almost all Terms and Conditions, so don’t mess around with it too much!
Also include a statement to the effect that you take reasonable steps to ensure the functionality and availability of your website, however disclaim all liability for loss or damage that may result from any downtime that your website may suffer (regardless of the cause of that downtime).
Specify things like the intended purpose and use of your website and your responsibilities for maintaining the information on the site. For example, while you take all reasonable efforts to maintain the accuracy of information on your website, you should disclaim responsibility for updating your website.
If you allow third parties to post or comment on your website, or if you have third parties publish material on your website (such as Guest Bloggers or third party reviews), include statements explaining that any opinions are the author’s own and are not your opinions or representations and disclaim any liability for the work of those third parties.
Conduct of Visitors:
Include your expectations of how you want visitors to your website to behave. For example, if your website allows Users to post information or comments, you should expect Users to only post information that they in fact have permission to distribute (i.e. no breach of copyright), that is not discriminatory, misleading, defamatory or in any way offensive, does not breach any law or confidentiality obligations or rights, and is not harmful in nature (e.g. not a virus or other harmful software), etc.
Include an explanation of what it means to subscribe to your website. For example, if you have a ‘subscribe for updates/newsletters’ facility, or if you offer a free download for subscribing, explain that by subscribing the subscriber will be added to your database and will receive electronic communications from you. Also explain how the subscriber can unsubscribe. This is an important part of your compliance with the Australian anti-spam regulations.
Links to and from external sites:
Be clear that any links to third party websites are provided for convenience only and that you are not responsible for any information on those third party sites. You may also want to add that you have not reviewed and do not endorse the third party websites. Importantly, include a statement that if a User chooses to access a third party website using a link from your website, they do so at their own risk.
Specify the terms under which a User may link to your website and that if the User links to your website in contravention of your Terms and Conditions, that User must fully indemnify you against against any loss or damage suffered as a result of that contravention.
If you use Affiliate Links, you should disclose the fact that you may receive commissions if the user takes a particular action.
Intellectual Property Rights:
Include appropriate statements to protect your own intellectual property rights over the information that you publish on your website.
Choice of Law, Notices and Enforceability:
Choice of law relates to which law would be applicable if there was a legal dispute relating to your website. You should choose a law that you (or your legal advisor) is familiar with. In Australia, you would typically choose the law of the state in which you operate or are incorporated.
If a User wishes to take action against you, they will need to provide you with a Legal Notice regarding the action. You should include a statement regarding how Notices should be provided to you (e.g. typically Notices must be issued in writing and delivered to a physical address). You should also include how you will issue Notices to Users (e.g. you may issue Notices via email and deem the Notice to have been received by the User within 24 hours unless the email bounces).
Enforceability relates to your ability to enforce the provisions of your Terms and Conditions. Generally, you should include a statement that if any part of your Terms and Conditions is deemed invalid or unenforceable, then that part will be ‘struck out’ and the remaining Terms and Conditions remain effective and in force. This is important for ensuring that if there is a problem with any part of your Terms and Conditions, you don’t automatically lose all protections.
Reserve your right to amend the Terms and Conditions at any time without notice simply by updating the Terms and Conditions on your website. This ensures you have full ability and flexibility to change your Terms and Conditions as the needs of your website change.
Right to terminate:
Include a statement that the User agrees that you may terminate or suspend their access to your website at any time and in your sole discretion without notice. This is important so that you can protect your website from people who may post inappropriate comments, etc on your site and you want to revoke their ability to do so.
Include a statement that says that if you don’t immediately act on a breach of your Terms and Conditions you do not waive your right to do so in the future.
Other matters that you may need to cover are things like:
- Terms and Conditions for any sales/purchases conducted via your website.
- Terms and Conditions for any memberships to your website (e.g. if you have a ‘Members Only’ section, you would include things like restricting Users from sharing passwords).
- If your Terms and Conditions are complicated or use lots of different terms, it may be useful to include a “Definitions” section explaining key words.
- If you use your website to conduct secure transactions such as payments, you may need additional provisions relating to security.
- You may require Users to make certain warranties regarding themselves in order to qualify for use of your website (e.g. they may need to be over a certain age to make certain purchases, or warrant that they are the credit card holder for any purchases).
Need help with your Terms and Conditions?
A quick google will reveal hundreds of Terms and Conditions used by other website owners that you can review and use as a basis for creating your own Terms and Conditions. That said, as with all legal issues, it is important to ensure you are properly protected and as such, you should consider having an experienced adviser review (or create) your Terms and Conditions for you.
Feature image adapted from image by: vichie81 / FreeDigitalPhotos.netImportant Notice: This information is general information and does not constitute legal advice. Before acting on this information, you should seek professional advice from your adviser. The Author is not a Registered Legal Practitioner.