Contracts

Terms of Use – Knowing What You’re Going to Get

Sorry, Forrest, life may be like a box of chocolates, but you should always know what you’re going to get.  (Maybe Mr. Gump just didn’t notice the chocolate-identifying map in the box of chocolates he was eating.)  No matter what business you’re in, customers, partners and users want to know what they are going to get.  They may do the research, or they might just make assumptions.  Either way, Terms of Use are an important tool in protecting yourself. If you are engaged in either e-commerce or collecting user information, it’s vitally important that you have terms of use.  Your terms should (1) inform individuals on how data about them will be used; (2) describe purchase or return policies; and (3) set forth any limitations on how disputes will be resolved.

Make terms readable and accessible

Ideally, your terms will be read, understood and adhered to.  If there should be any hope of this, the terms must be in plain language and organized for maximum comprehension.  Use paragraph headings, write in the active voice and simplify language.

Repeat the important stuff

Are you asking for user data?  If so, provide a link to your terms stating how such information will be used.  Ask them to click a message box confirming that they accept them.  Are you setting up a shopping cart?  Provide a link to the section of your terms that discusses your policy on returns.  By using links to one centralized Terms of Service page, you can maximize your protection, while minimizing the work involved.

Repetition and consistency are key

Am I repeating myself?  I hope so, and you should too.  Terms of Use must inform, but also combat assumptions made by your users.  So repeat, repeat, repeat.  However, it’s equally important to be consistant.  If you need to call attention to a section of your terms, make certain your message stays the same – or better yet, use the exact language from your terms.  If you revise your terms frequently, linking to one source instead of providing a synopsis might be advisable.  However, for critical information, such as “no returns” or “no guaranteed uptime” you may need to make additional conspicuous declarations near customer click-points to avoid any confusion.

Speak to your audience

Maybe you can’t make your Terms of Service a best-selling novella, but you can make it less painful.  Know your audience and speak to them.  Carry your company’s voice throughout your website and documentation.  Feel free to keep in friendly, just stay away from sarcasm.

Let users opt-out

For things like mailing lists, it’s just good business sense to allow customers to opt out of emails that they already know they don’t want.  For click-to-agree requirements, adding a “disagree” option provides the opportunity make it clear that agreement is required before continuing and/or making purchase. Ideally, constructing Terms of Use is a cooperative project between you and your counsel.  Counsel is unlikely to understand all the intricacies of your business, and may overlook information your customers or users need.  On the other hand, business owners can benefit from legal counsel’s knowledge of frequent areas of conflict and  litigation pain-points.  Together you can make comprehensive and effective terms to protect your business.

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