1. Disclaimer/Limitation of Liability
You will want your agreement to limit your liability for the user’s use of your online product or service. Of course, you cannot simply put a provision in your TOU that limits all liability, but there are certain categories of damages that you may be able to limit by contract. Consult an attorney for more detailed information.
You make certain promises about your product or service to your customers. That is good and sensible business practice. There are also certain warranties provided for by law. However, there are certain limitations you may want to place on those warranties through your TOU and you should do so to the extent permitted by law. These must be clear and conspicuous to your customers, so consult an attorney to draft them for you.
Posted in Small business
Generally, the main thing that courts consider when determining whether a TOU is valid and enforceable is evidence that the user actually “assented” to abide by the terms of the agreement. That is, you must show that the user read and understood the terms and voluntarily agreed to abide by them. Additionally, “conspicuous” or obvious notice of the agreement’s existence prior to the user accessing your product or service is very important.
Here are a few guidelines to ensure that your agreement is enforceable if ever called in to question in court.
- Match your agreement to your business. The value of each sale or service should be considered in light of how big of an effect a breach of the agreement would have on your business. For example, a simple “I agree” may be sufficient assent by a consumer, but if you are dealing with another business, it might be worthwhile to require more evidence of “assent,” such as an initial on each page or requiring the user to write out the full name of the business after reviewing the document. Continue reading