Many small business owners probably remember when websites were not a thing. Do you remember the blocky, green-screened computers? Or the printers that used that printer paper with the tear-away sides, you know, the ones with the holes? If you have not seen those printers, you might be in luck the next time you are in an airport terminal waiting for your flight. I recently saw one there! The point is that we have come a long way (except, perhaps, for airport terminals…) since the first home computers and printers started becoming a normal part of our life.
When it comes to your business, it is more likely than not that you will be interacting with customers through the internet somehow. Right now, we will be talking about businesses with a website. The focus is on how you, as a business owner, can protect yourself from liability and establish the rights and responsibilities of anyone using the website. Having terms and conditions, a disclaimer, and a privacy policy clearly and conspicuously on your website can help you accomplish this. Doing so will allow you to rest a little easier.
Why Businesses Might Have a Website
Allow me to illustrate some general reasons why businesses may have a website. I recently moved to a new city and did an internet search for a new dentist nearby. The search resulted in a list of dental offices, and I clicked through to look at their websites to help me decide where to go. As recently as 15 years ago, dentists paid thousands for an ad in the phone book! Now businesses are searchable on the internet and can display a robust website that markets the business’s services. Sophisticated website analytics track customer activity to provide data. Savvy business owners can use it to tailor products, layouts, and marketing to attract higher sales.
In addition, online sales have become a major part of many business websites. For some, this is the business. For example, COVID made ordering food for pickup and delivery a new convenience. To order food from a mobile device, you must enter your name, address, phone number, and payment card information as part of the process. In our contemporary market, customers go through this same process for everything from diapers to furniture, often delivering it to their doorstep without ever having to step outside the comfort of their homes. How fantastic is that?!
So, What’s the Downside to Websites?
Just like when you invite customers onto the premises of your business invites the risk of liability, inviting customers onto your business website also invites the risk of liability and harm, both to you as the owner and to customers. When customers come onto your website, click around, and enter personal information, that data is stored somewhere. There is a chance that a computer virus could be uploaded to your website and transmitted to future visitors. For these reasons, setting up terms and conditions for accessing your website is important. Include a disclaimer and clearly explain how customer information is used in a privacy policy.
Terms and Conditions
The terms and conditions, also known as terms of use, or terms of service, are an agreement, or contract, that you establish, and the customer agrees to by accessing your website. For example, a common provision found in terms and conditions determines how customers can use the intellectual property accessed and made available to customers through your business website, including trademarks, graphics, and logos. Terms and conditions will also include what country or state governs the terms and conditions. They will also include what is commonly known as a change clause. This allows the owner of the website flexibility to unilaterally modify and change the terms and conditions as circumstances warrant.
Are the Terms Noticeable?
An important consideration for terms and conditions is whether they are clear and conspicuous for users. Terms and conditions are typically at the bottom of a website. They often show up when users create an account on the website, make a purchase from the website, or move between different website pages. When a court decides whether to uphold the business’s terms, it will look for evidence that the terms are reasonably noticeable so that the customer will be on notice for them. For example, one court found that since the customer “had to click a few times that she agreed to the terms and conditions,” it was sufficiently noticeable.
Adding a Hyperlink With Different Font Could Help
In another case, another court considered a hyperlink to determine whether it was sufficiently conspicuous. Since the hyperlink had a different type of font from other words and letters, along with being in boldface font, as well as a clear contrast between the colors of the letters and background, the court determined that it was clear and conspicuous to the customer. The court found this despite the font for the hyperlink being smaller than other letters on the website.
Disclaimer
Typically included in the terms and conditions, a disclaimer is where you shield yourself from legal liability. It serves as a notice to all website users of the limitation of your liability for the outcome of the use of your website. It protects you in case some of your content is not accurate which causes harm to an individual. They protect you in the case of the transmission of a virus through your website. A disclaimer says that if someone comes to your site, they do it on their own accord, and your liability will be waived to a certain extent.
Privacy Policy
The inclusion of a privacy policy is required by law. The privacy policy is separate from the Terms and Conditions. Various laws require that websites inform customers about how their personal information will be collected, stored, and used. This refers to the company’s internal uses and how they might be shared with third parties. Also, how and where will it be stored? A privacy policy aims to sufficiently inform customers about using and disseminating their personal information so they can choose whether or not to interact with your website.
Decide Early How You Will Use Visitor’s Information
Just as terms and conditions need to be tailored to your company and practices, a privacy policy must be specifically tailored to how your company uses the personal information of website visitors, whether or not, and to what extent you share that information with others, and how your company stores the data. This may seem obvious, but the privacy policy must reflect your company’s practices accurately. For example, a court recognized that there were apparent contradictions in Apple’s privacy agreement that limited the use of personal information compared to how Apple was collecting and using the information in practice.
Don’t DIY, Have a Lawyer Looks Things Over
A quick search on Google will pull up stock website disclaimers, terms and conditions, and privacy policies. While this might be a good start, you must have a lawyer work with you to ensure you do this right. Make sure that it applies to your particular business and situation. Make sure there is no confusion about what the terms mean for you and visitors to your site.
Here Are 5 Decisions To Start With
- What privileges, rights, and responsibilities visitors to your website should have?
- What intellectual property do you have on your website that you would want to be protected?
- How you will use data about customers’ personal information.
- The state you prefer for potential litigation.
- Whether you will limit liability with potential claims.
As a small business owner, you have a lot going on. Rest a little easier by ensuring that you have applicable and relevant terms and conditions, disclaimers, and a privacy policy clearly and conspicuously stated on your business website. This will provide you with a layer of protection, like a warm, algorithmic blanket, to bring you peace of mind.
