Whether online or on paper, all agreements must follow the same basic contract law principles:
- The user must have notice of the terms of the agreement.
- The user must consent to the terms.
- The agreement must be fair.
Practice Tip 1: Check the box
Practice Tip 2: Conspicuous Placement
- Use simple text on a plain background.
- Omit colors, graphics, videos, and other distractors.
- Use a clean font in a readable size.
Practice Tip #3: Save Your Records
Checking the box is not the end. How do you prove the user agreed to your online agreement? You do this by saving the user’s acceptance. Consult your IT specialist, but there are various tools to check-the-box, pop-up the Terms of Service, and save the user’s acceptance.
Practice Tip #4: Skip the Legalese
Practice Tip #5: Fairness
The website owner has the upper hand. Yes, most users will check the box without reading the agreement. To be enforceable, though, the agreement must be fair.
You can limit the state in which a user can sue you. You can require the user to use arbitration instead of the court. You can limit your warranties. You even limit the remedy (how much money the user will receive if s/he wins).
However, don’t go overboard.
If you are selling high-end items, it is usually unfair to prohibit refunds for returned items. The exception would be conspicuous “as-is, all sales are final” sales. If you are selling expensive personal services, it is usually unfair to deny refunds if you are unable to perform the service (absent a conspicuous notice of your no refund policy). Protect yourself, but also be fair to your customers.
Each online business is different. An e-commerce store has different needs from a blog that has different needs from a social media site.
We are unabashed legal geeks here at Concerto Law and would love to help you with your online Terms of Service. Whether you need custom Terms or just a review and polishing of your existing Terms, we can make this easy for you.