Website and App Terms of Use

Website and app terms of use ("Terms") are a contract entered into between a website owner and its users. This articles will refer to website terms, but the comments are applicable to Terms for mobile applications.

Terms should be posted on all websites at the time of launch. There should be a prominent link to the Terms on all pages. They can vary in complexity with relatively simple Terms for informational websites and more complex provisions for transactional websites.

Accepting the Terms

There are generally two main ways users accept the Terms - click-wrap and browse-wrap:

• Click-wrap - users must click a box or take some other action to indicate acceptance of the Terms.
• Browse-wrap - users are bound by the Terms by virtue of their use of the website.

Where possible, the click-wrap form of Terms should be used, particularly in any website where a user account is created and/or a purchase is made. Click-wrap Terms are more likely to be enforceable. If Browse-wrap Terms are used, a prominent link to the Terms should be placed on the website with a notice that the use of the website is governed by the Terms and that use of the website constitutes acceptance of the Terms.

Common Provisions in Terms of Use

The main purpose of website Terms is to set out the rights and obligations of the website owner and its users. For the website owner, it is an important tool for limiting liability. Common provisions include the following:

• Changes - website Terms should permit the website owner to unilaterally change the Terms from time to times. Typically, the changes are said to be effective upon positing the changes on the website.
• Intellectual property provisions - Website Terms should include provisions which protect the website owner's intellectual property rights
• User Content - where users can submit content to the website, the Terms should include provisions which create guidelines describing the type of content that may not be submitted and grant the website owner a licence to use the user submissions.
• Payments - where users can make purchases through a website, including purchasing products or subscribing for services, the website Terms should set out applicable payment Terms, including timing of payment, manner of payment and any refund or cancellation rights.
• Limitations of liability and disclaimers - it is common for website owners to have broad provisions which limit their liability in connection with a users' use of the website. Disputes - at a minimum, the Terms would include a choice of law provision (which confirms the applicable law), as well as a forum selection provision (which sets out the jurisdiction in which court claims must be commenced). Website owners may include a provision requiring the parties to attempt to engage in some form of dispute resolution (such as negotiation or mediation). Website Terms may also include an arbitration provision which requires that disputes be decided through arbitration as opposed through the courts.