Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 77 76 / Venable For companies drafting terms and conditions that they want to later enforce: • Require affirmative consent to the terms of use with a “click” before the user can make a purchase or download. • Use language manifesting affirmative consent, such as, “Yes, I agree to the terms of use,” at the point of click. • Use a font that is legible on all relevant platform devices (i.e., font sizes must not be so small on a mobile device as to be illegible). • Understand what information should be included in the terms and conditions, and what information must be more prominently visible at the point of sale. • Review how your terms and conditions work together with privacy policies and other sales policies. • Review and update your terms and conditions frequently. Terms and conditions for a website or mobile application set forth important information about the terms of sales for a product or service, subscription services (if applicable), cancellations and refunds, and other customer service issues. They often include intellectual property protections for the brand’s website or app as well as dispute resolution, indemnification, limitations of liability, and other provisions that are important to include in a contract. Terms and conditions should be drafted with care and revisited frequently, as they set the governing policies for customer transactions and customer service. Companies should also carefully consider how they will garner acceptance of and enforce their terms. Many terms contain provisions that waive a user’s right to a jury trial, insist that disputes be resolved by mandatory binding arbitration, or specify the forum for resolution of any dispute in a locale that is preferable for the drafting company. Terms and conditions often form a critical link to privacy policies or other terms specific to the company’s business operations and customer dealings. Whether a court enforces these provisions or links can often turn the case for or against the company. Thus, understanding how to communicate such terms effectively is a key consideration. It is also critical to understand what provisions to avoid burying in terms and conditions. For example, consent disclosures for telemarketing or texting under Telephone Consumer Protection Act (TCPA) rules should not be submerged in long-form terms and conditions, nor should disclosures about automatic renewal features in a sale offer. Thus, in developing terms and conditions, a comprehensive view of the entire website or app and your transactions should be considered. Terms and Conditions Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051 Ellen T. Berge etberge@Venable.com +1 202.344.4704