You’ve spent countless hours crafting your company’s website. You’ve coordinated contractors and teams. You are finally settled on a design that works. You’re ready to launch!

Not so fast.

Don’t overlook that small link at the bottom of your page that says Terms and Conditions. Or Terms of Service. Perhaps Terms of Use.

Whatever you call it—TOS, TOU, or T&C—that easy-to-overlook link points to a contract with your customers that governs just about every aspect of your website or service. It’s pretty important. Let’s double click. (Sorry.)

First of all, you need a contract with your users, but you don’t actually have to put it on your website. You could sign an offline contract with each user. Believe it or not, that does make sense on rare occasions. But for the other 99.9% of the internet, one-off contracts present some obvious logistical and compliance problems. To solve them we put contracts on the site and make every user agree. (More on that later.)

What about the name? Is it TOS, TOU, T&C, or something else? And does it matter at all? Yes and no. Most lawyers consider the differences more semantic than substantive. We think that the right answer is to align the title of the document with the way users will interact with your site. If your users are consuming content and following affiliate links, Terms of Use seems appropriate. They’re just “using” the site. If you offer a subscription-based service or SAAS app, Terms of Service is a better fit. Terms and Conditions works best when you’re selling goods. That said, the consensus view is right. From a legal standpoint, the title of your user contract is vanishingly unlikely to have a substantive impact. Pick something and move on.

So much for names. Let’s get to the good stuff.

Most website terms, regardless of title, should cover some critical areas: protecting the company’s intellectual property, permitting and prohibiting specific user actions, (reasonably) minimizing the company’s liability to users, and outlining how and where disputes will be resolved. Other common themes include payment terms, cancellation policy, and refund policies. A lot of this is standard. But here’s the thing. Every website is different. So when you’re getting started, go ahead and rip a copy of someone else’s terms (that’s copyright infringement, by the way) or pull a generic template. Just know that it’s a dangerous way to operate. Particularly if you have something to lose—like valuable IP. And the sooner you can put terms in place that reflect what you actually do on your site and what you actually expect from users the better.

Here’s one thing you don’t want to skimp on, even on a shoestring budget. (You can do this part yourself!) All the policies on your website should be “integrated” into your terms. Your terms should explicitly require that any user of your site agrees to your privacy policy, cookie policy, and any other disclosures on your site. That way your user’s entire relationship with the site and your company is contractually established and all your policies are explicitly agreed to. So, for example, if a user disagrees with your privacy policy, the user shouldn’t be able to enter into a contract for your services—that is, accept your terms—since your privacy policy is now part of your terms.

Finally, you need to make sure the user accepts the terms. That can be done in a few ways. From least to most effective: by the user continuing to use your website, the user checking a box (which ideally is not pre-checked), the user clicking “accept” or something similar, or the user being required to scroll through the entire set of terms before taking an affirmative step like checking a box and clicking “accept”. Whichever you choose, the user should know that their action signifies an agreement to your terms.

We could write a lot more about “click wrap” acceptance. But we’ll have to save it for a future installment. If you can’t wait, drop us a line and we’ll double click on it.