Legal Corner: Terms and Conditions
Whether you have a brick and mortar store, an online store, or both, one key to protecting your business is having a terms and conditions document in place. Terms and conditions in a brick and mortar may be simply posting what your refund and exchange policies are. It may be more extensive. It may include all sale items are “as is” and final sales. The terms and conditions detail the terms of the sale or service you provide. With an online store, the concept is the same, however, what is needed to protect your online business is a bit more extensive than the terms and conditions you might have in place for a brick and mortar store. The use of terms and conditions govern the transactions that take place on your website, moreover, these terms and conditions help resolve issues that arise in your favor.
The most effective terms and conditions will not only include many of the items listed below but they will also require the customer to take affirmative action by checking a box or clicking yes to agree to the terms and conditions. Requiring the customer to activate the check box acts as a virtual signature to your terms.
- Use of the Site: This provision states that you, as a customer, are legally allowed to use the website, that you are using it for the purpose for which it was intended.
- Intellectual Property: This provision states that the intellectual property, the content of the website, the logos, the images, basically, anything associated with the website and potentially social media, belongs to the business owner. It also states that using any of the intellectual property without written consent is a violation of federal law. Further, if anyone wishes to license the intellectual property of the business owner, he or she should contact the owner directly.
- External Links: Sometimes external links are provided for the convenience of the customers. Sometimes they are used as an extra resource for the customer. Other times, it may send the customer to a site where the customer pays (i.e. PayPal). In these instances, the retailer should disclaim any representations made by these external links. The substance of these sites is beyond the retailer’s control. Further, the retailer notifies the customer that using these external links, even if it is to purchase goods, is at the customer’s own risk.
- Cookies: And, I don’t mean the chocolate chip kind! Cookies are what websites use to collect data. For example, the website can track how many times you view an item; it can save whatever is in your shopping cart, it can track whether you are getting on their website via laptop or mobile device. All of that information is valuable to the retailer as they try to discern the buying patterns of their customers. However, the retailer cannot collect this information without notifying the customer that this is being done.
- Warranties: This is a provision that makes no promises about the website; it doesn’t guarantee anything (i.e. that you will love your purchase, that you will be 100 percent satisfied). Retailers are certainly welcome to have guarantees and warranties, however, the retailer must make sure they understand what it is that they are promising.
- Disclaimers of Liability: This provision allows the owner of the website to disclaim liability for any damages, whether they are direct or indirect, as a result of access and use of the website. This disclaimer is a grey area. A retailer can certainly put it in their terms and conditions, however the broad these types of disclaimers are, the less likely they will be enforced.
- Severability: This term means that where there are certain terms and conditions that become unenforceable for a variety of legal reasons that the remainder of the terms and conditions listed are still treated as enforceable. This protects the parts of the document that are drafted well, and it gets rid of the parts that are not.
- Choice of Law: This is a very important provision to include in any contract or agreement. A choice of law provision allows for the law of the state in which you reside and do business to control. In a situation where you file suit against someone else or if someone else files suit against you because of your website or online store, it is possible that the law in your state could control. That may not seem like that big of a deal, until someone from across the country files suit. The choice of law provision means they must file suit in your state rather than filing in their state.
- Affirmative Acceptance: As stated before, having the customers affirmatively agree to your terms adds a level of protection to your online store.
Of course, there are other provisions that can be added depending on each specific retailer. The important thing to remember is that your terms and conditions should cover your business. It is important to have your legal professional draft or, at the very least, review your terms and conditions to make sure that your terms actually protect and minimize risk in your business.
DISCLAIMER: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.