Terms and Conditions have become a nearly ubiquitous feature of our daily lives. The first time we download an app or visit a website, we are almost certain to be met with Terms and Conditions that we must agree to in order to proceed.
For website owners, is having your Terms and Conditions listed enough? Sometimes, but having a proper Terms and Conditions template along with an option to agree is always a more legally protected option. In this article, we’ll talk about why that is, and discuss where you should put Terms and Conditions on websites.
The idea of digitally agreeing to Terms and Conditions isn’t new. In fact, it’s been around for nearly thirty years. Ironically, it began as a paper sticker on the outside of shrinkwrapped software boxes.
In the mid-1990s, software companies would place a sticker on the shrinkwrap of software, like CD-Roms, that said something to the effect of: “Opening this box is the same as consenting to the Terms and Conditions listed inside.”
You might think that this wouldn’t hold up in court, as purchasers couldn’t read the terms until they actually opened the box. However, the court threw out this argument, as many products could be purchased without a customer knowing the full Terms and Conditions, such as when an airline ticket was purchased from a desk agent. Thus, “shrinkwrap contracts” became a legal term.
Next came what’s known as “clickwrap.” When a user installed software for the first time, they would be presented with what is commonly known today as “Terms and Conditions” and the option to agree by checking a box or clicking a button.
Then, browsewrap contracts appeared. With these agreements, a website doesn’t explicitly make you agree to terms, but will list them in an easy-to-find location and make them clear to anyone who is browsing the site. Browsewrap is typically reserved for sites where the user hasn’t yet signed up for an account.
Where Terms and Conditions law becomes tricky is when courts find that a website’s Terms and Conditions weren’t clear, had unconscionable clauses, or were difficult to find. Hard-to-find Ts and Cs were the main point of a famous 2000 case, in which Ticketmaster sued another company for using its website in violation against the stated Terms and Conditions.
Ticketmaster listed its Terms and Conditions at the bottom of its website, saying something to the effect of: “Using our website means you agree to the following Terms and Conditions.” Furthermore, there was no “Agree” button. The judge threw out the case on the grounds that those visiting the website were unable to give their consent and that they were unlikely to see the Terms and Conditions at the bottom of the webpage.
When it comes to how to set up your Terms and Conditions, it’s advisable to have visitors agree to Terms and Conditions before browsing your site. If you decide to have them agree to terms only when creating an account, you should make your notice of Terms and Conditions clear and easy to locate. This is where templates from The Contract Shop come in handy!
Kevin Gallagher is the CEO of The Contract Shop®, a contract template store for creative entrepreneurs, freelancers, coaches, and more. His background is in helping online businesses grow, having previously worked at Allbirds managing part of their operations. He is proud to report that his digital artist wife Mandy is a happy customer of The Contract Shop®, and his main motivation is to help as many people like her as possible with the tools that they need to confidently manage their businesses.
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