Website Terms and Conditions

A website’s Terms and Conditions (otherwise known as Terms of Service or Terms of Use) function as a legal contract that binds the website’s users. It outlines what users can and cannot do on the website. A court may reference your website’s Terms and Conditions if there is a case against your business. This is why it is so important for any business that has a website to have Terms and Conditions, regardless of size or industry.

Although there is no law that requires a website to have Terms and Conditions, every website should have one. Custom website Terms and Conditions protect you and your business from potential legal issues by establishing the rules that govern the use of your site and limiting your liability. Amongst other things, your Terms and Conditions should outline prohibited behaviours, establish the conditions for using your website, and protect you from being held accountable for errors or misinformation. Moreover, they prevent the abuse of your website and establish ownership of your website content. This is why you should have Terms and Conditions if your business has a website.

Website Terms and Conditions are legally binding as long as certain precautions are taken. Canadian courts have found that if Website Terms and Conditions are not implemented correctly, they may be invalid or unenforceable. These are the precautions that you should take to ensure that your Terms and Conditions are legally enforceable:

Website Terms and Conditions do not need to be signed in order to be legally enforceable. However, some steps must be taken to ensure enforceability. One way to ensure that your Website Terms and Conditions are enforceable is via a “clickwrap” prompt. This requires a user to click to confirm that they agree to your Terms and Conditions before they use your website. This is a common method of obtaining evidence that the user provided consent. It would be appropriate to use a clickwrap prompt when a user accesses your website, creates an account, or makes a payment.

Another way to ensure that your Website Terms and Conditions are enforceable is a via “browsewrap” prompt. This is when the website notifies a user that, by using the website, the user will be bound by the Terms and Conditions. It is imperative that Terms and Conditions be clearly brought to the attention of the user when they first access the site. Between these two approaches, clickwrap agreements are more likely to be enforceable in court.

Your Website Terms and Conditions can be changed at any time. However, you should take reasonable steps to inform your user of any changes you make. Specifically, any time you make changes to your Terms and Conditions, you should notify your users about the changes. One way to do this is to send an email notification advising the users of the changes.

Note that if you try to enforce your updated Terms and Conditions against a user without prior notice, then the user may argue that they are not aware of these changes and never agreed to them.

Here are some key sections that should be included in your Website Terms and Conditions. These should be adapted based on the specific nature of your business.

• Introduction: Identify your business and the user as the parties to the agreement.
• Effective Date: State the date of the most updated version of the agreement.
• Acceptance: State the conditions of acceptance (e.g., “By using our services, you agree…”)
• Changes: State that you reserve the right to make changes to the Terms and Conditions and explain how you will notify users.
• Other Policies: Provide links to your other policies, such as your Privacy Policy.
• Prohibited behaviours: Set out behaviours that are prohibited when using your website (e.g., advocating illegal activity, violating third-party rights, harmful or abusive behaviours, etc.)
• User-Generated Content: Set the rules for users who wish to contribute to your website or service (e.g., no posting offensive, threatening, defamatory, or obscene content).
• Intellectual Property: Outline your intellectual rights, what constitutes your intellectual property (e.g., trademarks, copyrights, trade secrets, etc.), and prohibit users from using such property without your express written permission.
• Payments and Refund Policy: Set the rules for billing and refunds. Describe your refund policy and conditions, if applicable.
• Account Suspension and Termination: Explain when a user’s account may be suspended or terminated, detail the penalties for violating your Terms and Conditions.
• Governing Law: Determine which jurisdiction governs your Terms and Conditions in case of any legal disputes.

The following sections should be incorporated into your Terms and Conditions for extra protection. These, in particular, should be tailored to reflect the specific nature and risks of your business.

• Limitation of Liability: This clause limits or excludes your liability for certain claims. For example, you can exclude liability for loss of income, negligence, personal injury. or property damage arising from a user’s use of your website. As such, this may be the most crucial element of the entire agreement, as it can save you thousands in potential legal costs and settlements.
• Disclaimers: Consider including a disclaimer clause. For example, if your business markets health products, then you may wish to include a disclaimer that informs your website visitors that the information provided on your website is for only educational or informational purposes and that you do not guarantee any health outcomes. If your business is in the financial industry, then you may wish to include a disclaimer that explains that the information on your website is not a substitute for professional and/or financial services and that you do not guarantee any income results.
• Indemnity: This clause requires your website users to cover any losses or expenses that they cause your business through their own actions.
• Disputes: This clause sets out how you will resolve any disputes between you and your website’s users. Conflicts can be resolved via alternative dispute resolution channels such mediation or arbitration. You can also determine who will be responsible for the costs of the mediation or arbitration as well as the location.

While you may choose to download generic Website Terms and Conditions online as a cost-saving measure, it is not recommended to do this. This is because these standard, generic Terms and Conditions will likely not be specific enough to your unique business to give you the protection that you actually need. Moreover, copying another site’s Terms and Conditions could constitute copyright infringement. As such, it is a good idea to have custom Terms and Conditions created for your website/business.

Lawyers understand what is or is not enforceable. They know the limits of what can and cannot be protected against. They are also trained to draft your Terms and Conditions in a way that is clear and in your best interests. Considering the significance of your website Terms and Conditions, it is essential to hire a lawyer to draft custom Terms and Conditions to adequately protect your business.