Terms of Use vs Terms of Sale: The Difference, and Which Ones Are Mandatory
Terms of Use govern how a site or service is used, with no commercial transaction required. Terms of Sale specifically govern the sale of products or services, and become mandatory as soon as a commercial transaction takes place, particularly in e-commerce. A site may need one, the other, both, or neither, depending on what it actually does.
The real problem: confusion that leads to oversight
Many project owners confuse Terms of Use with Terms of Sale, or assume a single generic document can cover both needs. The frequent result: an e-commerce site publishes a poorly named, incomplete set of "general terms" that fails to meet the pre-contractual information obligations required for an online sale. Conversely, a site with a member area but no sales may try to impose Terms of Sale when Terms of Use would suffice and would better match how the site actually works.
Terms of Use: governing use, not sales
Terms of Use set the rules for using a site or digital service: what a user can and cannot do, the respective responsibilities of each party, the conditions for accessing an account, intellectual property over the content, and the conditions under which an account can be terminated where relevant. They are not required by any specific law in absolute terms, but they are strongly recommended as soon as a site offers any interactive feature: a member area, account creation, user-submitted content, or an online service (SaaS, platform).
Terms of Sale: mandatory as soon as there's a sale
Terms of Sale, on the other hand, are a clear legal requirement as soon as a distance-selling business is carried out, under French consumer protection law. They must be communicated to the consumer before any sale is concluded and must cover a precise set of pre-contractual information.
What each document should contain
| Element | Terms of Use | Terms of Sale |
|---|---|---|
| Purpose | Rules for using the site or service | Terms of the commercial transaction |
| Legal requirement | Not systematic, strongly recommended with an account/interactivity | Yes, as soon as there's a distance sale |
| Price and payment terms | Generally absent | Mandatory |
| Delivery timeframes and terms | Generally absent | Mandatory for physical goods |
| Right of withdrawal | Not applicable | Mandatory for distance selling to consumers |
| Legal warranties | Not directly applicable | Mandatory (conformity, hidden defects) |
| Account termination | Covered if applicable | Not applicable |
| Intellectual property over site content | Generally covered | Generally absent |
What compliant Terms of Sale must include
For an e-commerce site, the Terms of Sale must in particular specify: the seller's full identity, the essential characteristics of the products or services, the total price including all taxes, the payment terms, the delivery timeframes and conditions, the existence and conditions of the right of withdrawal (generally fourteen days for a consumer, with exceptions provided by law for certain products), the legal warranties of conformity and against hidden defects, and how complaints are handled.
The case of mixed activities
A site that offers both an online service (for example, a SaaS subscription) generally needs both documents: Terms of Use to govern day-to-day use of the platform, and Terms of Sale to govern the financial and transactional terms of the subscription. The two documents can coexist and reference each other without replacing one another.
Acceptance: an often-overlooked point
A set of Terms of Use or Terms of Sale only has legal value if it has been brought to the user's attention and, in the case of Terms of Sale, actively accepted before the transaction. A simple link in the footer, never opened or explicitly accepted, offers noticeably weaker legal protection than an unchecked checkbox tied to order confirmation.
What to remember
- Terms of Use govern general use of a site or service; Terms of Sale specifically govern a commercial transaction.
- Terms of Sale are a legal requirement as soon as there's a distance sale, unlike Terms of Use, which remain recommended without being systematically mandatory.
- A showcase site with no online sales can do without Terms of Sale, but benefits from Terms of Use if it offers any interactivity.
- Terms of Sale for an e-commerce site must cover price, delivery, right of withdrawal, and legal warranties.
- Active acceptance of the Terms of Sale before purchase (an unchecked checkbox) is essential for them to be enforceable in a dispute.
- The two documents can coexist on the same site, serving distinct needs.
Frequently asked questions
Does a showcase site with no online sales need Terms of Sale? No, Terms of Sale govern a commercial transaction. Terms of Use remain useful for governing use of the site, especially with a member area.
Must Terms of Sale be actively accepted before a purchase? Yes, active and unambiguous acceptance is expected before the order is confirmed, typically through an unchecked checkbox, for evidentiary purposes in case of a dispute.
Can a site have Terms of Use without Terms of Sale, or the other way round? Yes, these documents are independent and address distinct needs depending on what the site actually does.
What's the risk for an e-commerce site with no Terms of Sale? A failure to meet the pre-contractual information obligations under French consumer law, which can be sanctioned by the relevant authority, and a weaker contractual position in the event of a dispute with a customer.
In summary
Terms of Use and Terms of Sale address different needs: how the site is used on one hand, the commercial transaction on the other. Confusing the two, or settling for a generic document, leaves an e-commerce site exposed on precise obligations under French consumer law. This overview stays general; for documents tailored to your business, advice from a lawyer specializing in digital or consumer law is recommended. Stores supported by VeryAppi start with a Terms of Sale structure compliant with e-commerce obligations, to be adjusted according to the business.
Frequently asked questions
›Does a showcase site with no online sales need Terms of Sale?
No, Terms of Sale govern a commercial transaction. A showcase site that sells nothing online has no legal obligation to publish Terms of Sale. Terms of Use remain useful for governing how the site itself is used, especially if it offers a member area or an interactive form.
›Must Terms of Sale be actively accepted before a purchase?
Yes. For an online sale, both good practice and the applicable regulations expect active, unambiguous acceptance of the Terms of Sale before the order is confirmed, typically through an unchecked checkbox. This acceptance must be provable in the event of a dispute.
›Can a site have Terms of Use without Terms of Sale, or the other way round?
Yes, the two documents are independent. A site with a member area but no sales may only need Terms of Use. An e-commerce site can have both: Terms of Sale for the transaction and Terms of Use for general use of the platform, including outside of any purchase.
›What's the risk for an e-commerce site with no Terms of Sale?
The absence of Terms of Sale on a commercial site is a failure to meet pre-contractual information obligations under French consumer law, which can be sanctioned by the relevant consumer protection authority. It also leaves the seller without a clear contractual framework in the event of a dispute with a customer, which generally works against them.