How do you determine whether your website or mobile application Terms of Use and Privacy Policy will be enforced if the need arises? It’s always a good idea to beef up the strength of your legal documents, particularly if you are sell anything through your platform or offer paid memberships. Generally speaking, the courts will enforce Terms of Use and Privacy Policy if those documents are 1) clear and conspicuous and 2) contain no unreasonable provisions.
Clear and Conspicuous
That first general “clear and conspicuous” factor will be satisfied if the link to the Terms/PP is at the bottom of the front page and landing pages above the fold so that users don’t have to scroll down. Ideally, the link should be the same size font as the surrounding text. It is, of course, common practice to place the links at the footer of the pages in fine print. That’s okay is most cases, just be aware that the further users have to scroll and the smaller the font, the more legally vulnerable your Terms of Use and Privacy Policy become, especially if they contain unreasonable provisions.
Reasonable Provisions
The second requirement, “reasonable provisions” will be upheld if there are no unusual, surprising, unfair or one-sided clauses that favor website owner more than they favor users. Potentially unreasonable terms are licenses to use users’ content, attorneys’ fees, waiver of trial in favor of arbitration, liquidated damages (fines), provisions about sharing visitors’ personal information with third parties or using it for marketing purposes.
Examples
If your website or mobile application contains any of the aforementioned shaky provisions, or if you are selling anything through your platform, you might want to beef up the enforceability of the Terms and Privacy to ensure they will actually hold up when necessary. How? One of the easiest, non-annoying and free ways of doing this is to ensure the users must click the checkbox next to “I agree to Terms of Use and Privacy Policy” before they register an account or purchase anything. There should be a clickable link to the Terms and Privacy. For example:
Having a checkbox gives you strong protection but it's not absolutely necessary to have the checkbox, as long as the "I agree..." sentence is somewhere near the button. This is an example of how Twitter does it on its account sign up screen:
Amazon:
