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How to Write Terms and Conditions: Basics & Requirements

Masha Komnenic CIPP/E, CIPM, CIPT, FIP

by Masha Komnenic CIPP/E, CIPM, CIPT, FIP

July 29, 2022

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How to Write Terms and Conditions

Terms and Conditions — aka Terms of Use or Terms of Service are integral to the protection and success of your website.

They outline how you and your users are permitted to act, and they also address a broad range of important issues, ranging from dispute management to intellectual property rights.

Writing a Terms and Conditions agreement for your business can be complicated. You need to ensure that you’ve included all necessary clauses and that the final product is easily understandable and accessible to your users.

Follow this guide to learn how to write a Terms and Conditions agreement and how to make them accessible to users.

Table of Contents
  1. What Is the Purpose of Terms and Conditions?
  2. Can You Legally Write Your Own Terms and Conditions?
  3. Terms and Conditions Solutions
  4. How To Outline and Prepare Your Terms and Conditions
  5. What Your Terms and Conditions Needs To Include
  6. What To Avoid in Your Terms and Conditions
  7. Tips for Writing Good Terms and Conditions
  8. Where To Display Your Terms and Conditions
  9. Summary

What Is the Purpose of Terms and Conditions?

The purpose of writing Terms and Conditions agreements is to create a legal relationship between you and your customers where:

  • You provide services to customers.
  • Your customers must follow the rules you establish in your Terms and Conditions.

It also allows you to:

  • Establish rules for user behavior
  • Manage user expectations
  • Establish rules for terminating and suspending user accounts
  • Prove deliberate trade or copyright infringement

Can You Legally Write Your Own Terms and Conditions?

Yes, you can legally write your own Terms and Conditions. 

Although many companies rely on lawyers to write Terms and Conditions, you don’t need a lawyer to create a legally-enforceable Terms and Conditions. 

Instead, you can use Terms and Conditions solutions such as our terms and conditions generator or our terms and conditions template to help create your own.

These methods will save you money and give you a clearer idea of:

  • How to manage financial and legal risks
  • How to regulate your user community
  • How to manage user expectations
  • How to protect your intellectual property

Terms and Conditions Solutions

Here are three ways to create Terms and Conditions for your company:

Managed Solution

Answer a few questions about your business and our Terms and Conditions generator will automatically create a Terms and Conditions agreement for your business.

If you have limited time and energy, use a terms and conditions generator. You don’t have to write anything from scratch — you simply have to answer questions about:

  • Where your users are located: If you have users in the UK, Iceland, EU, Liechtenstein, or Norway, the solution will automatically add General Data Protection Regulation (GDPR)-compliant language to your Terms and Conditions agreement. In the same vein, if you have users in the US, the managed solution will automatically add US-specific language to your agreement to comply with the relevant laws, such as the Children’s Online Privacy Protection Act (COPPA).
  • Whether you have a privacy policy: If you already have a privacy policy, just paste in the URL of your privacy policy, and the managed solution will add it to your Terms and Conditions. If you don’t have one, the managed solution will advise you to create a privacy policy for your website. Depending on what managed solution you get, you may be able to create a privacy policy directly from your dashboard.
  • How you will resolve disputes: Will you be resolving disputes between you and your users through litigation, arbitration, or information negotiations, followed by arbitration? The managed solution will incorporate your answer straight into the Terms and Conditions agreement.
  • Whether your site needs to comply with industry-specific laws: Certain industries require websites to comply with certain laws. For example, if your U.S.-based company sells drugs, food, medical devices, or cosmetics, you need to comply with the Federal Food, Drug, and Cosmetic Act.

Template

Consider using a Terms and Conditions template if you want more control over the contract creation process and have the time for it.

A template has all the clauses and language you need to create a Terms and Conditions agreement for your site or app. You can remove, add, and edit existing clauses and language in Google Docs or MS Word, so the agreement says what you want it to say.

DIY (Do-It-Yourself)

A DIY approach allows you to insert any clauses or language you want into your Terms and Conditions agreement. However, this route is very time-consuming and can be very complicated depending on your level of knowledge.

If you choose to write your own terms and conditions, we have created some guidelines below to help you.

How To Outline and Prepare Your Terms and Conditions

Before you start writing your Terms and Conditions, you need to outline why you need them and what you want to accomplish. If you can’t answer these questions, you may create an incomplete agreement that doesn’t give your company the legal or financial protection it deserves.

Remember, companies create Terms and Conditions agreements to address the following at a minimum:

  • Prevent users from abusing their service
  • Prevent users from harassing other users who use the service
  • Establish ownership over their content, trademarks, copyrights, and other intellectual property
  • Limit liability

If you don’t have clauses or language to address these issues, you will severely limit your company’s ability to enforce claims against users. Your ability to protect yourself from lawsuits will also be limited.

You need to keep these issues in mind and prepare for them before writing your Terms and Conditions. Focusing on these issues will help you avoid off-topic clauses and help you create a user-friendly Terms and Conditions agreement.

What Your Terms and Conditions Needs To Include

Terms and Conditions agreements need to include a variety of rules and guidelines for how users access and use your website or mobile app.

Here are some of the most common elements:

Introduction

Your Terms and Conditions introduction should let readers know they’re reading a Terms and Conditions agreement.

You should also inform readers that anyone using your platform, service, or website must follow the terms.

Here’s a good example from Spotify:

spotify-terms-and-conditions-introduction

You don’t need to use capital letters, but many companies choose to write in capitals to get readers’ attention.

Effective Date

The effective date is the date your Terms and Conditions came into effect

If you amend your Terms and Conditions agreement, you need to update the date to the most recent date. 

Here’s an example from Amazon:

amazon-terms-of-use-effective-date-example

Contribution

A contribution clause tells users what rights they have to the content they create through your website or application. 

You only need to include this section if your website or application allows users to create content.

This clause can also be called a licensing clause.

Here’s what Tapas‘ contribution clause looks like:

tapas-terms-of-use-contribution-example

DMCA Notice

If third parties post content on your website or app in any form, you should include a Digital Millennium Copyright Act (DMCA) notice and information about the company’s registration with the DMCA. 

The DMCA allows you to minimize liability if offensive or copyright-infringing material is accidentally posted on your website or app by end-users or third parties.

Here’s a good example from our site:

termly-terms-of-use-dmca-example

Notice how we’ve included detailed information about how users can notify our designated copyright agent.

Dispute Resolution

This clause specifies whether you will be resolving disputes between you and your users through litigation, arbitration, or information negotiations, followed by arbitration.

Consider adding a class action waiver to prevent users from getting involved in class action lawsuits against you.

Here’s what Electronic Arts (EA)‘s class action waiver looks like:

ea-spots-terms-of-use-dispute-example

Future Changes

Your agreement should mention that you have the right to make changes to the provisions in your Terms and Conditions agreement

You should also discuss: 

  • The method by which you will notify users of such changes.
  • The period of notice that you will provide before these changes occur.

Here’s what EA’s future changes clause looks like:

ea-sports-terms-of-use-future-clause-example

Governing Law

This section informs users which state or federal laws — or both — govern the Terms and Conditions agreement

In many cases, companies select the law of the state or country in which they’re located or the country in which users access the company’s website or application. 

Here’s what Spotify’s governing law section looks like:

spotify-terms-of-use-governing-body-example

Intellectual Property Disclosure

An intellectual property disclosure informs users of your intellectual property rights, such as your copyrighted and trademarked content, logos, and other protected marks and ideas

This section doesn’t have to be that long. 

Just state that you own these materials and that by agreeing to your Terms and Conditions, users agree not to modify, sell, share, rent, loan, or distribute your content in any manner.

Here’s an example from Apple:

apple-terms-of-use-intellectual-property-disclosure-example

User Guidelines

Your Terms and Conditions should establish what users can and can’t do and how they should interact with others.

Most companies ban users for:

  • Inciting or advocating violence
  • Using the site or platform for illegal activities
  • Sending chain letters, junk mail, or spam
  • Crawling or scraping to gather, view, or access information
  • Posting offensive, discriminatory, obscene, abusive, or threatening content
  • Harassing and bullying other users
  • Artificially increasing follows, likes, and other forms of manipulation
  • Removing or altering any copyright, trademark, or other intellectual property notices
  • Exposing another user’s credentials and personal information

Here’s an example from EA’s Rules of Conduct:

ea-sports-rules-of-conduct-example

You can consider having a separate acceptable use policy if you need a more comprehensive set of rules for your users.

Pricing Disclosure

If your site or app sells products or charges membership or subscription fees, you need to state the payment terms clearly. 

Consider using phrasing such as “as provided” for items and “as available” for services. This distinction will minimize the chances of a dispute. 

You should also list shipping costs and acceptable payment methods and explain how you will handle transactions.

To further limit liability, you should also explain what will happen in the event of a pricing discrepancy — such as one caused by a malfunction.

Here’s a good example from Amazon:

amazon-terms-of-use-pricing-example

Site Management or Support Clause

Consider including a site management or support clause to inform users how you operate the website or application. This explanation will give users a better understanding of how your site or app works.

Many companies choose to use lengthy site management sections that detail:

  • How long the company can monitor a website
  • When they provide updates
  • When they perform routine system administration or inspection
  • When they provide the service (i.e., 24 hours a day, 365 days per year)
  • Situations where the company can refuse access to individuals or existing users

Termination Clause

A vital part of Terms and Conditions agreements, a termination clause helps you prevent abuse of a site or application. 

A termination clause:

  • Gives you the right to suspend or terminate your users’ accounts.
  • Outlines the kind of behavior users can be terminated for engaging in. 
  • Explains how users can terminate their accounts.

Here’s what Instagram’s termination clause looks like:

instagram-terms-of-use-termination-clause-example

Third Parties

This clause informs users that your company is not responsible for any third-party websites to which your website or application links. 

In many cases, these provisions also notify users that they are solely responsible for reading the policies of third parties and third-party websites.

Here’s what EA’s third-party clause looks like:

ea-sports-terms-of-use-third-party-example

User Registration Clause

Include this clause if your company allows users to create or register user profiles.

To limit liability, remind your users that:

  • Their usernames and passwords are for their personal use only and should always be kept confidential.
  • They are responsible for all use of their usernames and passwords, including unauthorized use.
  • They need to notify you immediately if their credentials get stolen or if they believe that there has been unauthorized access to their accounts.

Here’s a great example from Spotify:

spotify-terms-of-use-creating-an-account-example

Limitation of Liability and Warranty Clause

Many companies that distribute or manufacture products use this clause to limit what they can be held liable for by customers

Here’s what most companies restrict liability for:

  • Errors and inaccuracies
  • Spyware, viruses, and product damage
  • Damage caused by third parties
  • Lack of enjoyment
  • Website or product downtime
  • Ensuring that services or goods chosen by the user fit a specific purpose

You should also remind users from certain jurisdictions that they may have more rights depending on the laws in their region. 

Some jurisdictions, such as Quebec, have consumer protection laws that don’t allow limitations on implied conditions or warranties or the exclusion or limitation of certain damages. As such, these users may have additional rights.

Here’s a good example from Amazon:

amazon-terms-of-use-liability-limitation-example

Although Amazon has disclaimed all warranties and conditions to the full extent, it’s also included a paragraph at the top to remind users from certain jurisdictions that some or all of the disclaimers in this section may not apply to them and that they may have additional rights.

Contact Information

You also need to address how users can reach you with questions regarding policies or operations.

Include at least two ways for users to reach you. Typical contact methods include:

  • Postal address
  • Email address
  • Online chat service
  • Telephone number
  • Email address
  • Fax number

Most sites place this clause near the end because most users expect to find contact information at the bottom of a Terms and Conditions page.

What To Avoid in Your Terms and Conditions

Besides including all of the clauses above, you should avoid doing certain things when writing your Terms and Conditions. 

Legalese

Legalese is a convoluted and overly-legal way of explaining things and often hides messages in the fine print.

Your Terms and Conditions should be as free of legalese as possible, both for the sake of readability and validity. The more legalese you use, the less likely your users will understand your Terms and Conditions. 

To cut out legalese, sift through your agreement to identify words or phrases that you can simplify.

Not Keeping Your Terms and Conditions Up To Date

Another common mistake is to forget about updating  your Terms and Conditions agreement after creating it.

Your Terms and Conditions agreement must reflect how your site or app operates. Therefore, you need to review it once every few months and ensure that it’s always up to date and accurate. 

For example, if you’ve added an ecommerce platform after creating your Terms and Conditions, you need to include that in your Terms and Conditions.

Similarly, you need to update your Terms and Conditions if you’ve added new copyrighted content to your site.

Tips for Writing Good Terms and Conditions

Writing a good Terms and Conditions agreement is often easier said than done.

Here are some tips for writing a user-friendly Terms and Conditions agreement.

Make it Easy to Read and Understand

To ensure that your readers know what they’re agreeing to, you should make your Terms and Conditions as straightforward as possible. As such, you should:

  • Avoid legal jargon: Make sure that you’re using words and phrases that most people will understand. 
  • Add summary snippets under each section heading: Add short summaries under each section heading to give users the tl;dr on that segment. These summaries are particularly useful if you have a long or incredibly complicated Terms and Conditions agreement.

Keep it Organized

Creating a readable Terms and Conditions readable isn’t just about choosing your words wisely. You also need to consider the layout of your final document.

Break your Terms and Conditions into sections with clear headings to maximize readability and also consider:

  • Bolding or CAPITALIZING certain words, phrases, or sections for emphasis
  • Using bullet points for lists

Avoid Copy and Pasting

Your Terms and Conditions agreement needs to be tailor-made for your site or app. Otherwise, it won’t be able to limit legal and financial risk. 

You should never copy and paste another site or app’s Terms and Conditions. However, you can draw inspiration from other platforms’ Terms and Conditions agreements to create your own.

Match Your Brand’s Voice

Your Terms and Conditions agreement’s voice and general feel should match the rest of your site. Make sure that you’re using the same sentence length, writing style, tone, and tempo as other parts of your site.

Avoid Harsh Language

Don’t be too harsh when telling users what’s acceptable and not acceptable. 

Be firm — but don’t be overly dramatic. 

Try to be as neutral as possible. An overly harsh tone may drive users away.

Be Honest and Transparent

Be as honest as possible and avoid double meanings. Try to include as much detail as possible without going overboard. Otherwise, users may have difficulty grasping what they’re agreeing to.

Make it Easy to Find

Finally, you need to place your Terms and Conditions on a mobile-friendly and easy-to-access webpage. 

You should also include a link to your Terms and Conditions in the following places:

Where To Display Your Terms and Conditions

What good are Terms and Conditions if your customers never see them, right? 

So here’s how you should present your Terms and Conditions agreement to users:

Put a link in your footer

Keep a permanent link on your website or app so users can easily navigate to your Terms and Conditions at any time. Most companies choose to place this link in the footer of their site.

A simple “Terms and Conditions” or “Terms” link will do.

Ask For User Agreement

However, keep in mind that a link in your site footer isn’t enough to enforce your Terms and Conditions in court. To maximize your chances of succeeding in court, you need to get users to agree to your Terms and Conditions. 

You can do this by asking users to agree to your Terms and Conditions through a banner or pop-up. These notifications should appear whenever a user arrives on your site for the first time. 

Once these notifications appear on the user’s screen, the user must click a button or checkbox to indicate they agree to your Terms and Conditions before they can start using the site. 

This method of consent gathering is known as a clickwrap solution.

Not only is it easy to use for both parties, but it also gives you plenty of evidence that a user expressly agreed to your Terms and Conditions

You can then use this evidence to enforce your Terms and Conditions if a legal disagreement finds its way to a courtroom.

Summary

Every site or app providing services or goods should have a Terms and Conditions agreement. Once you’ve finished writing your Terms and Conditions, display a prominent link to it in your website footer. You should also use checkboxes to get users to consent to your agreement.

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