Terms and Conditions for Productized Services
I hesitated to even write about website terms and conditions. I promise that all TBIP content is a no legalese zone. Also, I’ve considered them minor issues to the expertise-based business. I am pretty militant about saying that I don’t have an “online business” (I’ll unpack that in another post.)
But a recent legal opinion about terms and conditions (T&Cs) combined with an episode of The Business of Authority entitled Working Out Your Business Model (that actually mentions me!!😄🎉) got me thinking about online T&Cs in the context of productized services offerings.
For our custom services, there are a number of excellent tools that eliminate the need to exchange hard copies of proposals and services agreements. For example, I’ve worked with a number of service providers who use Honey Book. On the legal side of my business, DocuSign and Adobe are staples.
But when making true, non-consultative, online sales of productized services, we typically use standardized terms and conditions on our websites. Maybe there is a link to the terms, maybe there is a detailed FAQs, maybe there is nothing but the buy button under the description.
Of course, all legal issues are fact specific, so I speak only in generalizations. But I do want to you to mindful, as will I, an avowed non-online business, of this: If you want to be able enforce the terms of your productized service, make sure that your clients have knowingly agreed to those terms.
Summary of the opinion excerpted from Are Your Website Terms Enforceable? Maybe Not, According to These Recent Decisions
The website included language on two separate pages above the call-to-action button stating, "I understand and agree to the Terms & Conditions which includes mandatory arbitration and Privacy Policy." The Ninth Circuit found this insufficient. First, while the underlined phrases "Terms & Conditions" and "Privacy Policy" were hyperlinks, they appeared in the same gray font as the rest of the sentence, rather than in the blue color typically used to convey a hyperlink. And although the notice appeared directly above the button, the court found that even the proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give notice.
Instead, the notice must explicitly explain the legal significance of the action the consumer must take to enter into a contractual agreement, such as "By clicking the Continue button, you agree to the Terms & Conditions." The Ninth Circuit found that the marketer did not bind the plaintiffs to the terms because the design and content of the web pages plaintiffs visited did not adequately call to their attention either the existence of the terms and conditions or the fact that, by clicking on the "continue" button, they were agreeing to be bound by those terms. [emphasis added]
The italicized words really struck me. Is it not obvious that if I hit the buy button for a productized service, that I am agreeing to the description on the website? The answer is, maybe.
Don’t leave anything to chance regarding terms that are the difference between a profitable and an unprofitable productized service, such as scope of work, number of revisions, ownership of deliverables, refunds, and deadlines. Have a very clear statement about what pressing the buy button means.
It is okay if it isn’t as pretty as you’d like it to be. In this part of your sales process, your goal is a binding contract, not showing off your creativity.
Have questions? Send me a message.