What are website terms and conditions?
Website terms and conditions set out the basis upon which users are permitted to use a website. They also cover related legal matters: statutory disclosures, warranty limitations, disclaimers of liability, and so on. As they are written by the website owner or the owner’s lawyers, website terms and conditions are most commonly focused upon the protection of the owner’s interests. The terms and conditions are usually set out on a special web page.
What clauses are included in these terms and conditions?
The terms and conditions include the following provisions:
- a licence of the copyright in the website (and restrictions on what may be done with the material on the website);
- a disclaimer of liability, limiting the scope of legal claims that a user might bring against you;
- a clause governing user accounts, the use of passwords and restricted areas of the website;
- an acceptable use clause prohibiting various forms of undesirable conduct;
- a licence of user content, required because user content is itself protected by copyright and you need a licence in order to publish that content;
- rules relating to user content, such as prohibitions on defamatory and explicit material;
- a variation clause allowing you to change the terms and conditions;
- a clause specifying the applicable law and the jurisdiction in which disputes will be decided;
- a provision specifying some of the information which needs to be disclosed under UK and EU legislation.
How do I use the terms and conditions?
You can download a Microsoft Word (.DOCX) file by clicking the download button above.
Before publishing the terms and conditions on your website, you will need to edit them using word processing software. After editing, you should convert them to an appropriate format such as HTML. Your content management system (such as WordPress) may help you with the conversion.
Before and during editing, please read the guidance notes accompanying the terms and conditions. They highlight some of the key issues, including drafting which reflects specific statutory requirements.
Feel free to ask questions about the terms and conditions in the comments section below or using our Q&A system.
Why do I need website terms and conditions?
Obscure in the footer of almost every web page, amongst little used links to website policies, investor relations reports and adverts for adverts, you’ll find a terms and conditions link. Almost no one reads terms and conditions. No one really likes them. Web designers work hard to minimise their impact upon the user experience. Some publishers really are too cool for legal documents (“Here’s the boring legal stuff! Ha ha!”). Nonetheless, the directives of company legal departments and/or the inchoate fear of legal calamity drive most publishers to include legal documents on their websites.
What are the specific functions of terms and conditions?
There are four main functions:
- to protect intellectual property rights;
- to limit or exclude liability in relation to the use of the website;
- to make information disclosures required by law; and
- to establish a contractual framework governing the relationship between the publisher and users of the website
Our template terms and conditions cover each of these functions.
See below for more details concerning the specific contents.
How would terms and conditions help protect my intellectual property?
The different types of creative work that constitute a website (software, text, images, and so on) are protected by the law of copyright. Depending upon the website, other intellectual property rights might also apply, such as:
- moral rights and neighbouring rights;
- registered and unregistered trade mark rights;
- registered design rights;
- database rights.
Under US law, patent rights can be relevant, but this is rarely the case in the EU.
In any event, the copyright is usually the most significant right in the website context.
Terms and conditions will usually include a copyright notice asserting ownership of the copyright and other rights in these creative works, but that isn’t the end of the matter.
In order to use a website, a visitor’s web browser will need to create copies of those works. The act of copying is, on the face of it, an act of copyright infringement. To avoid infringement, the visitor needs a licence. Simply put, a licence is a right to do something that would, but for the licence, constitute an infringement.
If you don’t include an express licence in your website terms and conditions, a licence will usually be implied. If a licence is implied, its terms will be uncertain. To give a crude example, there may be uncertainty as to whether users are entitled to take your content and use it on their own websites. To avoid this kind of uncertainty, your terms and conditions should include an express licence, alongside the copyright notice.
Am I protected from liability by disclaimers in terms and conditions?
If you take the limitations of liability in the typical website terms and conditions at face value, you might think that there are no conceivable circumstances in which a website publisher will ever be liable to pay you compensation.
A typical set of terms and conditions might exclude liability for:
- loss of data and software;
- loss arising out of malware on the website;
- loss arising out of reliance upon information published on the website;
- losses relating to material published by users on the website;business-related losses; and
- consequential and indirect losses.
Liability may also be capped, often at a low level. Where website services are provided on a paid basis, the cap will frequently bet set by reference to the level of any fees (0.5x to 3x annual subscription fees would be typical).
However, both UK and EU law control the effectiveness of disclaimers of liability. The rules themselves are complex, but a couple of examples will help.
- Under Section 2(1) the UK’s Unfair Contract Terms Act 1977, a person “cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence”.
- Under the UK’s Consumer Rights Act 2015, which applies to B2C but not B2B contracts, a range of warranties are implied into contracts, and any clause which would exclude or restrict the website publisher’s liability under those warranties is not binding upon the consumer.
Because of legal constraints of these kinds, the limitations of liability found in many sets of terms and conditions would not stand up to the scrutiny of a court of law. However, sometimes they will, and this is one area where you should not attempt any amateur lawyering.
What information disclosures does the law require?
Disclosure rules are a recurring motif of UK and EU consumer protection law. If consumers are better informed, they will be in a better position to benefit from their legal rights – or so the argument goes.
Similar considerations apply to individuals who aren’t strictly acting as consumers, such as users of a free service, and to small businesses in their dealings with large businesses.
Here are some examples of disclosure requirements from UK and EU law.
- Article 5 of the EU’s Ecommerce Directive (Directive 2000/31/EC) requires that “Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information: (a) the name of the service provider; (b) the geographic address at which the service provider is established; (c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner; (d) … etc”.
- Under Schedule 2 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the UK’s current implementation of the EU’s distance selling rules) businesses selling to consumers at a distance (including through a website) must disclosure a long list of different bits of information, as set out in Schedule 2. http://www.legislation.gov.uk/uksi/2013/3134/schedule/2/madeSection 25(2) of the UK’s Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 provides that every UK company must include the following information on its websites: “(a) the part of the United Kingdom in which the company is registered; (b) the company’s registered number; (c) the address of the company’s registered office; (d) in the case of a limited company exempt from the obligation to use the word “limited” as part of its registered name under section 60 of the Act, the fact that it is a limited company; (e) in the case of a community interest company which is not a public company, the fact that it is a limited company; and (f) in the case of an investment company within the meaning of section 833 of the Act, the fact that it is such a company.”
The template terms and conditions contain prompts for the disclosures that are most commonly required in relation to non-ecommerce websites.
In addition to mandatory disclosures, website terms and conditions often contain flags about intended uses. Terms and conditions might prohibit children from accessing a website or purport to limit access to users in particular countries. Sometimes a law will apply only where a website is directed at a particular category of user, and these flags may help with an argument that a website is not so directed.
Do I need a contract with users?
A contract is an exchange of value and/or promises that is enforceable in a court of law.
In English law, you can license copyright, disclaim liability, create confidentiality obligations and make statutory disclosures without creating a contractual relationship, but you will usually need a contract if you want to impose extra obligations upon your users.
If your users are paying you for something, there will almost always be a contract, whether you want one or not. If you are selling goods, there will be a contract of sale; and if you are selling services, there will be a contract of service. In the case of B2C relationships, both contracts for the sale of goods and the provision of services are heavily regulated. Accordingly, B2C contracting is another area where you should avoid DIY legal drafting.
To be clear, our free website terms and conditions template is not sufficient for websites selling goods or services. You should either supplement the terms and conditions or use an alternative template. Many of our premium templates (see below) include provisions relating to goods and services, in both B2B and B2C contexts.
What’s the difference between terms and conditions, terms of service and legal notices?
Legal documents are plagued by nomenclatural inconsistency. On this front, website legal notices are as bad if not worse than other legal documents. Documents called “website terms”, “terms and conditions of use”, “conditions of service” might all perform identical functions. So don’t worry too much about what you call your document.
I usually just call them “terms and conditions” – they are after all published on a website, so prefixing “website” isn’t very informative.
If, however, a website includes multiple sets of terms and conditions, qualifiers are appropriate. For example terms and conditions of use vs terms and conditions of sale vs API terms and conditions.
What alternative documents are available?
We publish probably the widest range of website T&Cs documents available in English. The full range of documents is available both on Website Contracts (as Microsoft Word documents) and Docular (where they can be edited online and downloaded in a variety of formats, including HTML).
A selection of the terms and conditions templates are listed in the tables below, but we have many more variations on the websites.
These are terms and conditions for common types of free-to-use website.
Specialised informational websites
These terms and conditions of use are for websites that publish special types of information.
Website selling products or digital downloads
These documents cover the use of websites selling products or digital downloads. They do not cover the contract of sale itself, but we do have a wide range of documents and packs that serve that purpose.
Subscription and other paid services websites
If you are selling online services that are supplied through a website, then you need terms and conditions that cover relationships with both casual visitors and paying customers.
What other documents will I need?
What you need depends upon exactly what you are doing.
Whilst we can’t give specific guidance here, website publishers might need the following, in addition to website terms and conditions.
- Subscription and PAYG services agreements – If a user is buying services from you, those services will be provided under a contract, and the terms of that contract should be set out in writing.
- Download and licensing agreements – These types of documents cover the use of a copyright-protected work, in addition to the transaction through which a copy of the work was acquired. An example would be a EULA designed to regulate the use of downloadable software.
- Terms and conditions applying to the sale of goods – If you are selling goods, you should include terms and conditions defining the contract of sale. You may also want separate delivery and returns policies.