If you own a platform as a service (PaaS), an online shop, a mobile app or even a simple showcase website/blog where various articles are posted (we will generally refer to them as “site/mobile app”), you most likely already know that there are certain legal documents that you need to make available to users: the privacy policy, cookie policy and terms and conditions of use of the site/mobile app.

In this article, we will focus on the importance of the terms and conditions and the main aspects that should be regulated through them.

1. What are the terms and conditions and why are they important?

From a legal perspective, the terms and conditions represent the contract between you and the users. In other words, the terms and conditions set out how the site/mobile app works and can be used and inform users about the products, services and other functionalities available on the site/mobile app.

It is therefore essential that this document contains all the information relevant to the relationship between users and you.

The complexity of the terms and conditions depends on the type of activity you intend to carry out through the site/mobile app. For example, the terms and conditions of a showcase site/blog where you only publish certain articles are less complex compared to the terms and conditions of an online shop or a platform (PaaS). In general, the more the site/mobile app allow users to do more types of actions/operations, addresses more categories of users or operates in areas of activity with specific regulations, the more aspects need to be taken into account and the more complex the terms and conditions will be.

2. What should the terms and conditions include?

The content of the terms and conditions depends on the services, products and functionalities that are available on the site/mobile app and there is no standard model of terms and conditions that can be used for every type of site/mobile app.

The terms and conditions usually include information on the following:

• company - company name, registered office and contact details necessary for users to get in touch with you, company number in the Trade Register (J), sole registration code (CUI);
• use of the site/mobile app and user account - the purpose of the site/mobile app and who it is intended for; whether they need to register a user account or can use the site/mobile app and the services/products/functionalities available on the site/mobile app even without such an account; what actions can be carried out based on the user account, including how the account can be deleted;
• user conduct / obligations - what obligations users have when using the site/mobile app and services/products; what conduct is prohibited on the site/mobile app, including the consequences of not complying with the obligations and conduct provisions;
• certain functionalities of the site/mobile app - what functionalities are available on the site/mobile app and how they can be used; whether and what conditions must be met for their use;
• order placement, delivery, return, guarantee - this information should be found especially in the case of online shops, where it should be specified how an order can be placed, what are the deadlines and costs for its delivery, if and under what conditions and deadlines an online order can be returned; what is the guarantee offered to the user, etc.;
• subscriptions and payments / payment methods - any amounts the user has to pay should be set out and displayed in a clear and transparent way; it should be made clear whether the use of certain functionalities/services/products involves a price/subscription; what the payment terms and methods are; whether subscriptions are automatically renewable; whether it is possible to automatically debit the subscription amount from the user’s card etc;
• intellectual property rights - a clause containing aspects of intellectual property rights in the site/mobile app and services/products should be inserted, including any licences granted as a result of/for the use of the site/mobile app;
• when access/use of the mobile site/app can be suspended or prohibited - it should be established when the user’s access and use of the site/mobile app can be suspended or prohibited, for example what happens if the user’s conduct is not compliant;
• legal liability - such a clause may contain provisions relating to certain damages due in case of breach of obligations and compensation for damages; In addition, by the terms and conditions, the operator of the site/mobile app may limit its liability in certain situations;
• applicable law and user dispute resolution - given its contractual legal nature, the terms and conditions should contain provisions on the applicable law and the competent courts to solve any disputes arising with users in relation to the terms and conditions and the use of the site/mobile app and services/products.

3. Where should the terms and conditions be published?

The terms and conditions should be published in a place easily accessible to the user and be available on every page of the site/mobile app - for example, in the footer.

4. Do you need to ask for users’ consent to the terms and conditions?

As a general rule, yes. But in practice, it depends on the type of activity you are carrying out via the site/mobile app. For example, in the case of showcase sites/blogs, in practice, the mere use of the site is deemed to be the user’s consent to the terms and conditions.

However, where the activity involves the sale of products, the provision of services or other activities involving the payment of certain sums of money by users, you should obtain the user’s express consent to the terms and conditions.

Express consent is usually obtained via a check-box that the user must tick when creating an account and/or placing an order. You should also keep the tick log along with the accepted version of the terms and conditions to be able to prove the user’s consent.

5. What else to keep in mind about terms and conditions

• language and clarity - it is important that the terms and conditions are legally correct, but at the same time use a simple language that can be understood by all users of the site/mobile app; Thus, information should be presented to users in a clear, concise and complete manner;
• customisation - the content of the terms and conditions is determined according to the services/products offered on the site/mobile app. It is important that they are tailored to the specific business and do not contain irrelevant or unenforceable clauses or information. Copying or taking as such provisions of terms and conditions from other sources without checking and customising them should be avoided for at least two reasons:
  • it is possible that those terms and conditions are protected by intellectual property rights that would be infringed;
  • there is a risk that certain provisions may not be applicable, even if the product appears similar or even identical (especially if they are taken from sites/mobile apps in other countries, to which other legal provisions apply);
• periodic updating - the terms and conditions should be reviewed periodically, on the one hand to ensure that all their provisions are still applicable and, on the other hand, to check them from a legal point of view, namely whether certain legal provisions have changed in the meantime or whether there are new legal provisions; Users should be informed in advance of changes to the terms and conditions (in some cases, the users’ consent should be sought again);
• applicable legislation - certain services/products are subject to strict regulations or specific legal requirements; thus, sites/mobile apps operating in areas concerning such services/products must ensure compliance of terms and conditions with these specific legal requirements at all times;
• communication channels - provide contact information for users so they can contact you if they have questions or concerns about the terms and conditions. Good support for users can help resolve their queries and prevent disputes.

The terms and conditions are an essential legal document for any site/mobile app, and how they are drafted and enforceable can have a significant impact on the relationship with users.

At the same time, another important aspect in dealing with users is how you process their personal data when they use your site/mobile app. If you want to learn more about how you should inform users about the processing of their data and what your privacy policy should look like, read our article on this topic here .