Image source: https://blog.ipleaders.in/draft-contracts-efficiently/

This article is written by Dhriti Hundia, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.

Introduction

You are in the process of building a beautiful website for your ed-tech business when the developer asks for your Terms and Conditions. Up until now, this hasn’t even crossed your mind. Isn’t that just legal mumbo jumbo at the bottom of websites? Does anyone even read it? You’re just a small business, do you really need to create a Terms and Conditions page for your website? The answer to that question is: definitely, yes! 

While it’s not mandatory under any law to have a Terms and Conditions page drew up for your business, (unless we’re talking about a privacy policy) it is the smart thing to do.  These pages can limit your liability if a customer/third party sues you and takes you to court, possibly preventing your company from draining huge amounts of resources on litigation at that time. It also helps establish ownership over the website, protect your intellectual property and enforce rules. The Terms & Conditions (T&C) of a website are also known as Terms of Service or Terms of Use. This article and outline will guide you on drafting a simple yet complete set of terms and conditions for your ed-tech website. We will cover all the important clauses your terms and conditions must include. 

Writing the terms & conditions

Once you decide your purpose and figure out the priorities for the terms and conditions, it’s time to start drafting them. Most Terms and Conditions of Edu-tech websites will contain the following clauses and sections. Make sure you incorporate them. 

  • Introduction and acceptance of the T&C

All the effort put into the drafting of the agreement is worthless, unless your user accepts them. Most websites ask users to accept the T&C when they sign up or log in. It can also be done by making the users tick an “I agree” checkbox. 

This example from Instagram illustrates how users agree to accept their terms and conditions and policies when they sign up as users. 

However, this is not enough on its own, one still needs to give their acceptance to the terms. This can be done by adding a statement in your introduction saying, “Use of our services in any manner shall constitute your acceptance of our Terms and Conditions.”

Pinterest also takes a similar approach using user-friendly language:

 

 

 

 

 

Doing this will form the basis of enforcing your Terms and Conditions.

  • Privacy policy 

If you are collecting any sort of personal information like email address, phone number, credit card details, then you’ll have to draft a privacy policy. The policy will govern how the information collected by your website will be used or not used. 

This is the only part of the Terms and Conditions that is legally required. It is a mandatory requirement in Australia, Canada, Europe as well as the state of California in the U.S. 

It is a better safe than the sorry situation, which is why most websites that collect only basic information like name and birthdate will still ensure they have a privacy policy in place. 

Privacy as a clause is also mentioned separately in the terms and conditions. Describing how you store and utilize your user’s data ensures transparency on your part and also protects you from any kind of liability. 

Look at Yahoo’s privacy policy for a good example!

But if you are drafting your own privacy policy, a simple yet effective approach would be like the one Car2go has, check it out below. 

  • Limitation of Liability 

You’ll need a basic disclaimer that protects you from any sort of liability from errors on your website or its content. 

A limitation of liability clause stipulates that a party will be obligated to pay the other in such an event under the terms of an agreement. This clause limits the amount as well as the types of damages a party can recover from the other. Without such a clause, users could possibly sue you for viruses, shutdowns, failure of the app/website, etc.

Even if you don’t anticipate any of this going wrong, it’s better to have such a disclaimer in place absolving you of liability, as generally, it is the things you did not foresee happening that have the potential to hurt you the most and land you in legal trouble. 

This is a sample clause that BYJU’s has in its T&C, which tells its users that they will not be held responsible for any sort of information on their website. They also have a clause stating, “The Company shall have no responsibility for any loss or damage caused to tablet or any other hardware and/or software and/or instrument, including loss of data or effect on the processing speed, resulting from Your use of our products and Services. 

As an ed-tech website, you will be providing your customers with a lot of information that may come from third parties. Therefore, it is pertinent to have a specialized limitation of liability addressing your concerns and issues, even if you feel that it is not really needed. 

  • Intellectual Property Rights

Irrespective of what your website does, you should always include a notice about copyright and trademark. For eg, “Copyright © 2015. yourwebsite.com.”

Now for ed-tech websites in specific, you provide your students with a lot of course material, video lectures, and documents. To make sure that it remains proprietary to you and does not get copied, it is essential to have an intellectual property section in your terms and conditions. 

Using someone else’s intellectual property without their permission or a license is actionable under the law. If a user does so, it gives you the ability to file an infringement or violation claim against him/her, and also terminate their access to your website and services in the future. 

A general statement like the one of Coursera covers most of your liability. 


However, in case of high-risk mitigation, consider adding a more detailed clause like the one of MasterClass.

  • Payment terms 

Including payment terms in your T&C allows you to terminate access in case of non-payment and puts customers on notice that you require their payment information, especially if you are functioning as a subscription or annual or quarterly installments-based model. 

This section does not have to include the payment amounts, as this will vary depending on the course, and you will most likely have a separate page for it.

The payment terms can explain how and when the payment is to be made, and what happens in case a refund is needed (if you offer it).

Below is a sample clause from LawSikho’s website relating to payments. 

If you offer a free trial, and the customer is charged after it ends, discuss that too. List the acceptable methods of payment in the least. 

  • Termination

This clause will deal with your ability to control the Terms and Conditions. It may be a stand-alone clause or contain certain violations that may lead to termination. BYJU has a general statement for termination which is sufficient.

However, the trend nowadays is to write a more detailed clause on termination, stating your own list of violations that may result in termination. Look at Coursera’s policy below as an example.

 

 

A general payment statement is sufficient, especially when are you are new. You can make it specific and change it as and as you grow to suit the business model. 

  • Notification of changes 

It’s a good idea to inform the users or notify them if any changes occur in the terms of use of the website. Because as time passes and you learn more about the market, there will be changes in your T&C. 

You can decide to change the amount of time the students will have access to the course material after the duration of the course. Will there be lifetime access to video recordings or not? 

These are things that might change, and therefore a flexible policy to make changes should be adopted and mentioned. 

This is BYJU’s sample clause – it gives them the power to decide changes at their own discretion. 

  • Set Governing Law

Your Terms and Conditions should also mention where your website is operating from in terms of the governing law (state/province and country).

For example, “These terms and conditions are governed by the laws of the United States of America and the laws of the State of California.”

Conclusion

The T&C is considered a dense document which is usually difficult to navigate, but slowly that narrative is changing and we see increasingly simple yet effective language being used, summary notes being provided along with it to make it more understandable. This can also be helpful in a courtroom, as interpretation becomes easier. Vaguely worded documents are frowned up and can be used against you.  Although it may seem quite overwhelming to create the document, it really isn’t.  

Just be smart about it and remember:

  1. Do not copy the T&C – this may be the easier way out, but just don’t do it. if you do copy another business T&C, you will not be able to protect yourself in court. 
  2. Enlist an attorney – hire a lawyer draft or at least review the T&C to meet the specific needs of your business

In my opinion, even a small-scale ed-tech business should consider getting an attorney as they transact business, collect personal information and have interaction on the website. Also, special rules apply for dealing with students who are minors and you’ll want to make sure you are compliant with the law and your website reflects this.

Chances are that no one will ever read your Terms and Conditions, but they will certainly come in handy should any issues arise.

Sample draft of an Ed-tech Agreement

  • EDUCATIONAL SERVICES AGREEMENT 

Between ______________________ and the ___________(ed-tech platform)

This Agreement is made this _________day of __________________, 20____ by and between _______________________________________________________________ a company headquartered at ___________________________________________ (hereinafter “Provider”), and the Ed-tech platform (MCCS), headquartered at 101 N. 14th Street, Napensee Road, Mumbai 400013 , collectively “the Parties.”

  • Terms and Conditions: 

NOW, THEREFORE, in consideration of the mutual promises herein contained, the Parties agree as follows:

  1. Provider to Offer Course(s), ______ will create, establish, and provide instructional content for the course(s), (the “Course(s)”), more fully described on Addendum A, attached hereto and incorporated herein, in accordance with the needs of the users. The Course(s) will be offered to students at the ______ website. 
  2. Non-discrimination and ADA. The provider does not unlawfully discriminate against any person because of sex, race, disability, national origin, veteran status, religion, or creed. Provider agrees to comply with all applicable federal and state laws, rules, regulations, and executive orders relating to non-discrimination, affirmative action, and equal opportunity 
  3. General Terms

Users of our services agree to not get engaged in any of the activities that; i) involves copying, distributing, or disclosing any part _______ services to any third party; ii) materially disrupts or abuses any aspect of the network, security system, or website; iii) includes uploading inappropriate data, virus, worms or any other unwanted software agent through the services; iv) generates or facilitates unsolicited or unauthorized advertising or marketing communications including but not limited to spams; v) involves collecting any personally identifiable information to another third party; vi) violates or facilitates the violation of the legal rights of others vii) interferes with the proper working of the service; 

You agree not to access or attempt to access the services by any means other than the interface provided by us. You will not use the services for fraudulent or illegal purposes including the storage or transmission of content infringing the intellectual property rights of others, or to communicate any message or material that is deemed harassing, indecent, obscene, or otherwise unlawful.

You agree to follow the best practices as recommended by _______ for getting good performance from the platform.

  1. User consent – These Terms, which include our Privacy Policy, are a binding legal agreement and govern your use of the Platform, including all features and functionalities, applications, updates, notifications, and our user interfaces, and all content and software associated therewith. By checking the “I accept the Terms & Conditions” box during the registration or by downloading the Chrome extension, using, visiting, or browsing an account on the Site, you accept and agree to be bound by the current version of these Terms. If you do not agree to these Terms, you are not authorized to use them, and you should not use the Platform.

Please note that these Terms may change from time to time. We will post any changes to our Terms on the Platform and our website and, if the changes are material, we will provide a more prominent notice (such as email notification). When we update the Terms, we will note the 

  1. Privacy Policy – You consent to us collecting your personal information to provide you with our service(s) to which you are signing up, and to communicate with you via email or SMS regarding our services, promotion and for the purposes set out in this Privacy Policy.

You also consent to us providing your information to our Partners for e.g. Moodle, Amazon, Microsoft in situations we are bound by partner agreements to share basic sales & customers information for their auditing and reporting purposes.

You consent to us collecting data regarding your use and your user’s use of the Websites. We use this information to guide improvements to our services.

  1. Collection and use of personal information- The main aim in collecting information about you is to provide our services and tailor-fit them for you. Moreover, there are several other objectives in the usage of your personal information which includes (but are not limited to),
  • Service: To provide you with and improve our services and manage payments related to that service;
  • Contact: To contact and communicate with you;
  • Research and development: To collect, analyze and report on data for evidence-based improvements, for future developments of our Website, related services, and our platform;
  • Marketing including direct marketing: To communicate with you about updates to our products and services;
  • Authentication and security: To authenticate users and conduct session management;
  • Support services: To provide you with information and support services;
  • Service maintenance: To analyze data to inform improved and enhanced services and customer relations;
  • Data analytics: For data analytic purposes;
  • Personalization: Guarantee that the contents in the website are presented in the most effective manner for you and your computer system, customize the content and advertising you see, provide you with additional information we think is of interest to you; 
  • Maintaining account and your personal identity: Where we collect your personal or usage information for a specific purpose not outlined above, we may provide you with a collection notice which explains the primary purpose and any related secondary purposes for which we are collecting and using your personal information.

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