This leads to mistakes that could later turn into legal troubles. That is why every online entrepreneur should learn the differences between these documents.
This article explains what each of them is and what are the key differences between them.
What are Terms and Conditions?
Terms and Conditions is a “take it or leave it” contract offer from the business to the user.
If they accept it, the Terms and Conditions apply, and the user must behave accordingly.
If they don’t accept it, it doesn’t mean that the user can do anything they want on the website or the app. It means that they have accepted not to use the website or the app. The user has only two options: accept the T&C and stay, or leave.
When the user can access content for free, such as when they come to a blog to read an article, or use an app for free without creating an account, the mere use of the website or the app means implied consent to the Terms and Conditions.
If the user keeps on browsing the website or using the app, they indicate accepting the T&C. The business sets the rules and invites the user to use the website under those rules. If the user uses the website or the app, it indicates that they are fine with the terms. In legal terms, this is called a "browsewrap agreement".
On the other hand, when it comes to a purchase, you need to ask the user to accept the Terms and Conditions explicitly because you need to enter into an agreement with them. In such a case, the Terms and Conditions serve as a purchase agreement between the parties, and the business needs to ask the user to accept them explicitly. It is enough to ask them just to mark a checkbox. This type of contract is called a “clickwrap agreement”.
In some cases, businesses may have separate Terms and Conditions and a separate purchase agreement. In other cases, they may offer some clients a contract tailored to their specific business relationship. All parties are free to agree as they find fit.
Having a clickwrap agreement in place, such as a website Terms and Conditions makes things easy and simple for online businesses and their users. They are standard and non-negotiable. The user either accepts them or leaves.
The content in the Terms and Conditions largely depends on the specifics of your business and your products and services.
Ecommerce stores need to set the rules about the purchase straight. SAAS businesses need to define what the SAAS does and for what price. The T&C of a blog would revolve around intellectual property and disclaimers about the content.
In general, you’ll find the following elements in most T&C:
What the product/service is: The product or service provided needs to be clearly defined so that the user knows what they are paying for. Businesses benefit by setting clear limitations of what the user can expect to be provided with.
Eligibility: This section defines who can use the website or app. This, in general, may set out age limitations or geographical eligibility.
Rights and duties: The rights and duties of all parties involved (you and your users) need to be clearly defined, including expected behavior from both of you.
Intellectual property: Your website or app is full of your intellectual property, so you must explain to your users what they must not do.
Indemnification and limitation of liability: Businesses can mitigate the risks associated with operating a business by including provisions on indemnification and limitation of liability. It won’t save you from liability, but in the case of a dispute, it can significantly reduce your costs.
Governing law and dispute resolution: Disputes are not very common for online businesses, but if they happen, they may pose a risk to your business’ existence. That is why you need to set a governing law and a dispute resolution mechanism that suits you.
Business information: Tell your users who you are, including at least your company name and an email address where they can contact you.
As mentioned above, the T&C content varies greatly depending on the nature of your business. This list is not at all exhaustive.
Privacy policies usually contain any or all of the following elements:
Your identity: Users need to know who processes their data.
Which categories of personal data you collect: Businesses must inform users of the personal data they collect. This may include personal names, IP addresses, home addresses, email addresses, ID numbers, or any other identifiable information.
Why you collect personal data: These are your processing purposes, such as marketing, advertising, analytics, and so on.
With whom you share data: Inform them about the third-party tools you use for processing data. These tools have access to your users’ personal information, therefore they need to be informed about it. These third-party tools include Google Analytics (Learn about Google Analytics GDPR Compliance.) , Facebook Pixel, Hotjar, and others.
Data subject rights: Make sure you list your users’ rights and how they can exercise them.
International data transfers: If the applicable law requires that, tell users where you transfer their data.
This is not an exhaustive list. The actual essential elements depend on the applicable laws. They always prescribe what you need to tell users about.
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