How often do you read the terms of use of the websites that you visit? If I could hazard a guess, I’d say hardly ever. Did you spend time and money on drafting (or getting your attorney to draft) your own website’s terms? You did, right?
If you never read other people’s terms of use, how do you expect your users to read yours? And if they don’t read it, is it binding? In other words, does it create an enforceable contract?
OK, enough with the questions, here’s some answers and advice on how to make your website terms stick.

1. Use boxes or buttons.

Most businesses hide terms of use in a link at the bottom of the website in size 6 font and attempt to bind users to those terms based merely on their use of the website. This does not a contract make.

A requirement for a valid contract is mutual assent. If you want to prove that there was assent by the user, you must have proof that the user read and agreed to the terms. Even website terms accessible through a conspicuous link will probably not be enforceable if a user is not required to affirmatively accept them.

All websites should implement these two key features when users first attempt to interact with the site, for example, if they sign up for a service, make a purchase or post content:
• Have a clear and conspicuous link to the website terms; and
• Require users to click a checkbox or ‘I accept’ button accompanying the terms.
Make it abundantly clear to the user that if they check the box or click the button, they accept the terms.

2. Don’t forget to keep a record of the user’s acceptance of the terms!

Make sure that there is an audit trail, email confirmation or similar record which can prove the user’s acceptance of the terms. The record should show the date and time that the user clicked the button or checked the box. This data will help you to determine which version of the terms was applicable at the time of acceptance.

3. Provide notice of any changes

Unilateral modifications to terms may not be enforceable. Like any other contract, amendments of website terms require the agreement of both parties. Practically though, it would be a nightmare to get each of your users to accept the terms again each time you need to make a change.
A practical solution would be to save up the changes you need to make and only do it once or twice a year. Give your users ample advance notice of your intended modifications via an email or with a pop-up notice when they visit the website. The notice should specify when the changes will become effective and state that the continued use after that date will mean that the user accepted the changes.

4. Have clear and concise terms

Why don’t we ever read website terms? Because they are boring and filled with legalese and jargon that no-one (except a few boring lawyers) understand. And, most of the time, they are ugly. Draft your terms of use in simple and clear language, make them easy to navigate by using colours or images, and turn your customers into fans.
Get in touch if you need help fixing your online terms.

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