Drafting of Terms and Conditions, Terms of use, and Privacy Policy

Drafting of Terms and Conditions, Terms of use, and Privacy Policy

Introduction:

A Terms and Conditions agreement includes the rules and the guidelines of acceptable behavior and other sections to which users must consent to use or access a website or mobile app. Terms and Conditions agreements (T&C) sets out exactly what one offers his customers and what he expects from them in return.

This agreement can be used anywhere, regardless of what platform the business operates on, be it Websites, WordPress blogs or blogs on any kind of platform, E-commerce shops, Mobile apps: iOS, Android or Windows phone etc.

It's essentially a contract between the owner of the website and his customers.

A person makes services available to his customers. In return for using these services, the customers promise that they'll follow the rules set out in the Terms and Conditions.

A Terms and Conditions agreement allows one to:

  1. Withdraw and cancel services
  2. Disable user accounts
  3. Manage customer expectations
  4. Set rules for user behavior

The Terms and Conditions agreement must be:

  1. Lawful
  2. Fair
  3. Clear and Unambiguous
  4. Agreed to

Every Terms and Conditions agreement should have the following clauses at minimum :

  1. Brief introduction
  2. Effective date
  3. Jurisdiction and governing law
  4. Link to the Privacy Policy
  5. Contact information
  6. Limitation of liability and disclaimer of warranties
  7. Rules of conduct
  8. User restrictions
  9. Account termination information

Depending on the services one offers, it might also include clauses on:

  1. Returns and exchanges
  2. Third party terms and conditions
  3. Subscription information
  4. Payment information
  5. Delivery and shipping details

Terms of Use:

If the owner of a website wants to describe the site's rules to its users, what he would  need is to draft the website's Terms of Use. Terms of Use are nothing but rules that outline the user restrictions. If one runs a website and fails to outline professional conditions for the users, it is nothing but  putting oneself in a very risky situation. For instance, without firm conditions, the owner can be held liable both, technical issues of the site as well as for certain actions of your users.

With the Terms of Use, the owner can define the legal rights of the site's users. These rules also create a legal relationship between the owner of the website, and several groups of people such as:

  1. Customers
  2. Members
  3. Visitors

Any website offering goods, services, or content needs to institute conditions and terms to restrict the legal liability of the business. Before users can access the site, the website should request that they agree to the site's Terms of Use, which is sometimes abbreviated as ‘TOU’.

because it's legally required that all websites have a Privacy Policy agreement, ‘TOU’ however are not mandatory, although they are recommended.

Writing Terms of Use

The benefit of drafting the Terms of Use is that the owner can include whatever rules he wishes to, so he can customize his TOU to fit the needs of his website. Some of the common TOU rules include:

  1. A prohibition on user spam.
  2. A provision that states that the content on the site is his intellectual property and is legally protected.
  3. Rules that allow the owner to terminate a user's account if they continually engage in behavior that could be considered abusive.

Because Terms of Use are a custom contract between the owner, his site, and his users. The owner can name this document whatever he want, with common options including:

  1. Conditions of Use
  2. Terms of Service
  3. User Agreement

No matter what this agreement is called, most Terms of Use include a few similar clauses:

  1. Provisions for how users can register with the site and what rules they must follow when registering.
  2. A clause describing what behaviors can cause for suspension or termination of a user's account.
  3. A statement that the owner shall own all content on the site except for user-generated content.
  4. A statement that the owner will notify users if you decide to make any changes to the agreement.

There are several reasons that the owner may want to use Terms of Use for his website. The most common use of this agreement is explaining to the users how the site should work and what user actions are prohibited.

Basic Components to Include:

  1. A statement that users failing to  agree to the TOU, are not allowed to register with the site.
  2. Whether the TOU is a clickwrap or a browserwrap agreement.
  3. A disclaimer that he cannot verify the completeness or accuracy of the information on the site. This disclaimer acts as a warranty.
  4. A disclosure that the owner retain the right to disable accounts on your sight that he considers to be abusive.

Privacy Policy

The Privacy Policy describes how the site collects, use and disclose information of the  mobile app or website users and what choices the users have with respect to the information.

Privacy Policy Checklist

Following are the clauses/ corresponding checklists in a Privacy Policy.

  1. Collection of Information  and Use where the owner needs to inform users about what kind of their personal information does the website collect and how is that information being used.

Following is the checklist for this:

(a) User information that can include name, email, phone, date of birth, gender etc.

(b) Collect user information if a user signs in to your site or mobile app using Facebook, Google or Linkedin.

(c) Services metadata, such as content read, link clicked, time spent, etc.

(b) Log data such as user's IP address, browser type and version, pages visited before using your website, browser configuration and plugins, etc.

(c) Mobile device information such as user's mobile devices (mobile and tablets) accessing the website, including type of device, operating system, device settings, unique device identifiers and crash data.

(d) Location information using IP address received from the browser or mobile device.

Data Retention

  1. Does the website retail user's data?
  2. Is data retention time based?
  3. Is data retention event based ?
  4. Can a user customize his data retention settings?

Log Data

Is the user's information collected while browsing the site or using the mobile app?

This can include user's IP address, browser type and version, pages visited before using your website, browser configuration and plugins, language settings, time spent etc.

Cookies

Does the website set cookie to the user's laptop / mobile phone? Even if it uses third-party tools such as Google Analytics or Facebook Pixels, it is termed as use of Cookies.

Cookies are text files which contain data that is specific to identify the user. This can include setting a cookie to check if a user has already registered on the site and, if yes, then the website may want to show a different website home page.

The Owner may show explicit confirmation to a user to accept usage of Cookie. If a user refuses, he will be unable to use some portion of the services.

Change in Privacy Policy

A disclaimer can be put that the owner of the website may change the Privacy Policy from time to time as laws, regulations and industry standards evolve or if the business changes. To stay informed and updated,  a user should review the Privacy Policy and if he disagrees to the changes, he should deactivate his account and request for removal of his personal data.

Conclusion

Terms and Conditions, Terms of use and Privacy policy play a vital role in the making and access of a website or a mobile application, thus the drafting of the same must be done accordingly to cater to the needs of the users and also to keep the rights of the owner of the website intact.

BY- SHRIJA VERMA