Writing Terms and Conditions

If you thought reading them sucked, try writing them.

One of my tasks as a church warden is to give (or deny) permission to people or groups to use our church’s property.

Part of that involves making sure people involved know what’s expected of them. Which usually turns into writing a terms and conditions document.

Why Terms and Conditions

Although terms and conditions type of documents get a bad rap, they are seeking to do one thing: make assumptions and expectations explicit.

When two people or organisations decide to do some business together, or a business purchases some external service, or two people get married, or whatever it is, they all have implicit expectations and assumptions about what that relationship will look like. What kinds of things are permissible? What can we rely on? What will never happen? What’s up for grabs?

Every organisation or person has slightly (or substantially) different ideas of all those. So terms and conditions try to make the implicit things explicit.

Writing Terms and Conditions

When writing terms and conditions, my aim is to write a document or agreement that:

• Is understandable by normal people (as opposed to lawyers).
• It might be signed to give it more weight (or it might not be).
• Clearly outlines the key conditions, responsibilities and obligations of each party involved.

I’ll use a few examples in this post which I’ve written:

• Click through free WiFi pages.
• Password access WiFi (where we don’t give people the password until they sign).
• Website terms and conditions eg: this blog and makemeapassword.org.
• Property usage agreement - this is the really big one (the longest version is 10 pages long).

Disclaimer

I am not a lawyer.

The agreements and documents I’ve written are NOT legal documents. I have no idea what legal weight they carry. If you need a really legally binding contract or list of terms, you need to get a lawyer involved.

I’m aiming for documents which are possible for a normal person to read, make sense of and understand. (I’ve been lead believe that “easy to understand” and “legally binding” are mutually exclusive, but you never know)!

Important Bits

Here are the important parts to go in terms and conditions.

(I’ve got the property agreement in mind for this, so there’s much more detail than on a website or WiFi click through).

Summary Pages or Paragraphs

Most people won’t read past the first page (possibly even the first paragraph), so really important stuff needs to be right up front.

There’s usually one or two key issues with an agreement. For property, I find it’s about cleanliness (make sure things are clean and tidy after you use them) and safety (minimise the risk of bad stuff happening, and manage accidents if they do happen). So that all goes right up front; the first page has details of what I expect for safety and cleanliness.

But before I even get to details, there’s a bullet point summary of obligations and expectations. Strictly limited to one page, plain english, simple sentences. Example:

You must: 
 • Work with Wenty Anglican to minimise safety incidents via a risk management plan
 • Leave the areas used in an orderly and clean state after use.
 • Report any breakages and damage to property

And for simple things like a WiFi click through, its even simpler.

• Do nothing illegal
• Your usage is logged for statistical and legal purposes

Things You Can’t Do / I Won’t Do

You’ll need a list of things that cannot happen. This tends to be things which are illegal, or are deal breakers if the other party does them.

Conversely, I might make clear certain things or services which I am not providing.

Example: in property agreements, there’s a list of illegal (or very grey area) activities which we do not permit under any circumstances. Also, there are particular parts of our property which are secure and no attempt may be made to access them.

Example: on this website, I say “There is no guarantee of service. The service may be unavailable without warning.”. Mostly because I host it on a home server on an ADSL connection, and it does go down because of Internet outages, server reboots, and 4 year olds turning the power off.

Example: for a password protected WiFi, we ask people don’t share the password.

Do not pass on the access password to any other person without the express permission of the Wardens or Senior Minister. This service is invitation only.

Things You Must Do / I Will Do

The converse of the last item, you’ll provide a list of things you make strong guarantees will always happen. This could be more details of the key points from the summary, or simply things we want people to be aware of.

Example: property agreements go into more details about safety and cleanliness. But are also quite explicit about how you handle keys we might give you for our property.

Any keys provided should be kept in a secure location or on the responsible person’s personal belongings at all times. Keys must never be distributed to any person outside your organisation.

Example: on makemeapassword.org, I make it very clear that I don’t log any passwords generated.

Example: for a click through WiFi agreement, I make it clear we’re logging MAC and IP addresses of your usage (so I don’t get in trouble), but we don’t share that without due process (because privacy is important too).

Your device IP address and MAC address are recorded when you accept these conditions. We do not share them with any 3rd party unless legally compelled to do so. Your usage is logged for statistical and legal purposes. We do not share records of your usage with any 3rd party unless legally compelled to do so.

Optional Things

Now we’ve covered thou shalt not and thou shalt, all that’s left is the grey world of may and might.

This tends to be used for things we would like to do, but may not be able to commit strongly to. Or, for things we want the option of doing, but also have the flexibility to not do.

Or, for the nuclear option.

Example: for a particular property agreement, usage was required at very short notice. While we want to provide assistance, that simply might not be possible.

As “duress” usage may be required at short notice, we cannot guarantee availability of volunteers to assist.

Example: in property agreements, you must put your rubbish in the bin. But how much is too much?

If the amount of waste created by your event fills half the available church otto bins, you may be asked to remove all your waste at your own cost.

Example: for the WiFi click-through, the nuclear option is invoked when we want to terminate usage because it’s being abused.

Anyone found to be abusing the service will be banned without notice.

Or, a similar nuclear option from property agreements:

Wenty Anglican reserves the right to terminate the license without notice in the event of repeated, serious or blatant violation of the license or additional terms.

Who, What, How Long

There are a few ground rules which are good to follow with these agreements. Generally involving clearly identifying who is involved, exchanging contact details and making clear how long the agreement is for.

On property agreements, the who will involve naming people and organisations, possibly including company numbers or ABNs. Get some mobile phone numbers and email addresses. And, for more formal agreements, street and postal addresses.

Oh, and don’t forget to provide your own contact details!

Another gotcha here is does the person signing the papers have authority to make such an agreement. So be careful no one if overstepping their authority, or the agreement may not mean anything.

On property agreements, we normally get one or two people to be designated responsible for any usage, but we may need a CEO or president or director to actually sign. Equally, in the complex world of Anglican Church legalities, there are some things we cannot agree to; the Anglican Church Property Trust needs to get involved.

And never make agreements which last forever. Fixed length agreements (perhaps for a year) which can be renewed are much better.

Key Issues

I’ve listed various types of statements to include (must vs never vs may), but what actual content should you have?

There have been various examples above, but you’ll need to think what possible issues could come up. You could potentially go on forever, so pick and choose the hills you want to die on.

Often, clauses get added to explicitly stop or prevent something, or in a more positive sense to make a point of difference against competition. So past usage or bad experiences can be a guide.

Current industry trends or hot topics can also inform your content.

Looking at other agreements in a similar scope or industry helps too (most of my WiFi terms were pinched from other free access points).

MakeMeAPassword.org

On makemeapassword.org, its fundamental to the operation of the site that generated passwords are not saved. But, the site serves a very specific purposes, so this is just not relevent to most other websites.

Passwords are not saved on the server. We don’t analyse, track or otherwise make any notes about your password. Ever. No exceptions. Your password needs to be secret to be effective and we make every effort to keep it secret.

There are also usage limits which apply based on how many passwords generated (because I don’t have unlimited servers or bandwidth). This is much more common on sites which provide a service; abuse or overusage tends to be frowned upon.

Based on your IP address, your may be temporarily blocked from using the site after generating excessive passwords.

WiFi Usage

For WiFi click-throughs, there are two issues at stake: the liability of the provider vs the privacy of the user. Privacy, in particular, has been a hot topic in IT circles since the Snowden thing. And it’s difficult to balance the two.

There’s a saying: if you aren’t paying for the product, you are the product. Which is often true for free WiFi. People’s usage is carefully monitored and sold, or ads are injected into web sites. I don’t like that kind of thing, so it doesn’t happen on WiFi I control.

But whoever is providing the WiFi wants to protect themselves from malicious users who access illegal or inappropriate content under the relative anonymity of free WiFi. So usage and metadata get logged, so we can point fingers, if it ever comes to that But we make clear that metadata is not shared, unless appropriate legal force is applied.

Your device IP address and MAC address are recorded when you accept these conditions. We do not share them with any 3rd party unless legally compelled to do so. Your usage is logged for statistical and legal purposes. We do not share records of your usage with any 3rd party unless legally compelled to do so.

In another post, I go in to technical detail about how such logs are stored so the casual (or even quite determined) attacker cannot access that data. However, in the click through, I don’t draw any attention to that, because it’s not directly relevent and is too complicated for 99.9% of people to understand.

A common requirement for office, work or our church WiFi is that it needs to be used for relevent purposes. At church, the wording is within the above conditions, you are free to use the WiFi service to assist your ministry and proclaim Jesus. Work Internet will have something similar: work usage should be related to your work.

But people commonly have one device for both personal and work use. You can’t tell your email client to only check particular email accounts on certain networks. Most employers are fine with occasional personal use, but not excessive. Our church agreement addresses this specifically (if slightly ambiguously).

Personal usage (not directly related to ministry at Wenty Anglican) is allowed within reasonable limits. However, excessive personal use does constitute abuse.

Software Licensing

In the IT industry, a big question is how do you license your software? By user, device or quantity?

Can one user or person use your software on any number (or a limited number) of devices (similar to the Office 365 Subscriptions)? Do you license the software per device and any number of users can access it (common for server licenses where many users access one computer)? Or do you license based on number of uses or quantity of output (I’ve seen this as an alternative to server licenses, you count the number of requests or widgets produced across a large number of servers, rather than licensing each server individually).

Or, finally, do you license the software to a whole company and simply let them go to town with it (often this kind of license comes with source code, and a hefty price tag; of is made available under an Open Source license).

Is the license perpetual (pay once, use the software forever), subscription (pay regularly, stop paying and stop using the software), or a mix (often you have a perpetual license, but support is a subscription)?

In my professional IT role, I’ve seen all the above (and more).

Property Usage

I’ve already used several examples from property agreements, so here’s one last one (which isn’t as legally important as the ones already mentioned, but is relationly paramount). What should happen when multiple groups are using the site at the same time?

Because of the nature of a church, it’s common to have groups on-site at the same time. Or have leaders setting up for usage in advance. Or simply authorised people doing maintenance.

There are a few clauses we put under the other people on-site heading: something nice, something helpful and something nuclear.

As a matter of politeness, when you are on-site with other Wenty Anglican members, your leaders and Wenty leaders should introduce themselves to one another.

I’d hope this is common sense, but it’s better to say hello and be friendly than try and hide and end up looking suspicious. And besides, we are actually a friendly bunch of people at church!

Wenty Anglican members on-site may be able to give assistance to you (eg: how to operate equipment or location of equipment), but members will be operating their own groups and will not be able to devote significant time. Any assistance will be on a best-effort basis.

In short: we want to be helpful, and often we can be, but sometimes it’s just not possible. So no guarantees.

Unforeseen circumstances may require you to vacate the property if Wenty Anglican ministries require its use. This is viewed as an option of last resort and all reasonable efforts will be made to find an alternative time and space.

This is the nuclear clause. It says we can kick you off our property if it comes to that. (Although, we really don’t want to do that - we really would view this a “press the big red button” type of thing).

For reference, the most likely unforeseen circumstances in my mind are funerals, which can happen with only a few days notice.

Boiler Plate

There are a few parts to agreements which are quite similar or a bit meta. They deal with how the agreement itself works. And, although they don’t directly impact day-to-day usage, they are good to be clear about.

Changing, Cancelling or Extending the Agreement

Like pretty much anything in life, your agreement will change at some point. Whether you need to add additional clauses, clarify terms, or simply fix spelling mistakes, you’d usually make an entirely new agreement.

Buy how does that work? You’ll need to notify the other party, and give them time to read, digest, potentially disagree and eventually re-sign. And, there’s the possibility the other party wants to change the agreement as well, which at minimum will need submission of requested changes in writing.

Oh and there’s usually a nuclear clause in this part (particularly in our property agreements).

Any requests for variations in the terms and conditions in any form must be submitted in writing. We may revise or issue new terms and conditions based on your request.

If particular usage causes significant harm to Wenty Anglican, either financially, damage to reputation or undue stress to members, we reserve the right to amend the terms and conditions in respect of this usage, without your agreement.

For ongoing agreements, its usually best to make them last for 12 months, and extend them. This gives opportunity for a review, and issuing a new agreement (which will usually look very similar to the previous one). But either party can request changes (whether minor or significant) without feeling like they’re doing anything unusual.

Finally, how do you cancel an agreement? How much notice do either party have to give? (Usually, the one in the position of power needs to give longer notice - as is the case with property licenses or leases). Are there any refunds? (Usually not).

In click-throughs and website terms and conditions, it’s usually enough to just leave a last updated date stamp. And then just change the terms. Though, for larger sites, notifying users is considered good form ([PayPal] is forever tweaking their terms and letting me know via email).

In Writing

For any sort of legal (or legal-like) things, it’s good to leave a paper trail. Mostly, so that all relevent parties have some idea what’s going on; that is, to be transparent. (And, if any agreement goes sour, there’s some hope of getting objective facts rather than just name calling).

Any changes, amendments, cancellation, disputes, grievances or serious queries should be in writing.

While it’s common to have face-to-face or telephone meetings when discussing more complex agreements, someone needs to be responsible for taking notes and circulating them afterwards. In this crazy modern age, recording the whole meeting on a smartphone isn’t a bad idea either.

Oh, and clarify what is an acceptable form of writing. Email is fine for most of what I deal with. But serious legal agreements need to be on acid free paper, writing in black pen, and submitted as originals (as annoying as that is).

Money

Money isn’t part of every agreement. But when it is, it’s best to be up-front and very explicit about what’s expected (or people will get cross, offended or be out of pocket). This is a big one for property usage (as the legal agreement we’re bound by requires us to charge a fee).

You may charge to make a profit or simply to cover costs (as we’re a not-for-profit, we usually do that later). But be clear about how much is required and how often. Will it change from use to use?

The the big one: what happens if you don’t pay? How much non-payment will be tolerated? And what are the consequences?

Oh and don’t forget to say how to pay. Bank details for direct deposit is the standard in Sydney, Australia. But credit cards, PayPal, bitcoin and even cash are all options.

Conclusion

Wow!

After spending too many hours reading and writing terms of use agreements, I know why lawyers charge so much money!

They aren’t that hard, but do take time, attention to detail and, well, more time.

Hopefully the plethora of things above will help people write their own. (Or at least think through some of the issues to raise with their lawyer).