Whilst most start-ups try to take a shortcut in compiling their Website Terms of Service by simply copying and pasting some industry leader's terms and conditions which is comparable to their own and placing it on the website, this is fraught with dangers and not advisable.
Terms and Conditions are not required by law, but we highly recommend these having in place to prevent abuse of your site
For example, one may consider their peer-to-peer lending or renting platform of movable equipment as comparable to Airbnb and therefore, simply copy Airbnb’s terms of service. Apart from the fact that this is copyright infringement, there will be aspects within Airbnb’s terms and conditions which are worlds apart from how you intend your business to function, but are now legally binding.
For example, a cover of up to $100 000 in respect of the breakage or theft of any movables on a property.
This would have nothing to do with your own business, but could be problematic as a disgruntled consumer could try and justify some arbitrary claim of theirs.
As such, we list below the 5 most important aspects to consider in a Website Terms and Conditions.
The type of website:
It is important to distinguish between whether the site will, for example, simply be for providing information to users, or rather allow users to submit information, content and the like on the website.
Examples of information websites might simply be a website about your company and what it does, whilst sites which allow for users to upload content might be a social media site, directory or the like.
If your website is simply to provide information, you will not be concerned about your terms and conditions recording the kind of content which might be uploaded, the fact that users which upload content need to ensure that they are permitted to upload such content and the like. Social media websites, and other websites which require content which needs to be uploaded require one to consider and record in the terms and conditions what kind of information might be uploaded, any rules pertaining to how users may engage with your site and potentially a community on your site.
Whether you receive payments:
If you receive payments through your website, you should record what payment methods will be acceptable, whether or not you store the card details, and if you do not store the card details, who will be storing the card details on your behalf.
Additionally, by accepting payments, you should then go on to record in what circumstances, if any, refunds shall be given, as well as any discount coupon policies.
Which law is applicable to your site:
There is a possibility that your users might be accessing your site from all over the world, but you might be headquartered in a single country only. It is often cheaper to record that the law applicable to your website is the one in which you are situated, which will inevitably save you costs should you ever go to litigation. This is on account of the fact that if the litigation is to be held in a foreign country, you would have to appoint foreign lawyers, and potentially incur travel expenses and accommodation.
Dispute resolution mechanisms:
It is important to consider that if the users ever have a dispute, what will be the process to resolve that dispute. We highly recommend that you simply don’t nominate a dispute to go to a court or arbitration as the first step, but rather record a process in which the parties will attempt to resolve the dispute informally between themselves.
If that dispute is not resolved within a certain period of time the matter is then referred to potential mediation where a mediator will try and find a resolution between the two parties and only thereafter if the dispute is still not resolved one should then go to arbitration or through court proceedings.
To the extent that your company ships goods physically, it is very important to manage expectations in the Website Terms and Conditions and set out the time frame in which goods are to be delivered and in which they might be returned, as well as what consequences would exist should the goods be delivered late, or in a defective state.
We hope that the above will equip you with the knowledge required to successfully set up your Website Terms and Conditions.