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Tips for Your Website’s Terms of Service

July 24, 2014   |   By Vela Wood

There are two documents that every business with an online presence must have: (1) a Terms of Service, and (2) a Privacy Policy. As discussed in my previous blog, Privacy Policies are crucial for every website since there are numerous state and federal laws governing Privacy Policies. However, the Terms of Service are equally as important since they are your main form of legal protection.

What is the Terms of Service?

A website’s terms of service are the rules and disclaimers that users must agree to in order to use a company’s website. Since the Terms of Service provide significant legal protections and are meant to form a binding legal contract between the owner of a website and the site’s users, they need to be complete and legitimate.What should be included in the Terms of Service?

The legal content of your Terms of Service will vary depending on your business and the interactions you plan on having with your customers online. However, there are a few essential tips that every business should keep in mind when drafting a Terms of Service.

  • Tailor the Terms of Service to your business
    • A website that serves as a passive online informational site needs different terms than a site that sells goods, hosts discussion boards, and communicates directly with customers through emails, blogs and social media
    • You need to consider the nature of your business, how you plan to use the site, expected online transactions, anticipated interactions with customers and any possible legal liabilities your business may face.
  • State your conditions of sale
    • If you plan on selling goods or services online, you will need to include your conditions of sale
    • Spelling out these terms will avoid customer misunderstandings and potential lawsuits from unhappy buyers
    • Make sure you address payment, credit card use, shipping terms, refund and return policies, and warranties
  • Make your Terms of Service Legible
    • Organize, organize, organize! Keeping the terms broken up in logical points will allow a reader to easily read through and understand your site’s rules and disclaimers
    • Bullet point and list forms are easy on the eyes and help avoid repetition
  • Address online conduct issues
    • If your site hosts discussion boards or interactive blogs, you need to create conduct policies for users who are participating
    • A strong behavioral policy should address a broad range of issues, including showing respect to other users and your business by not posting defamatory, offensive or obscene materials
    • You will also need to clearly state the penalties for breaching your site’s rules and disclaim any responsibility for what others may post on your site
  • Get the tone right
    • Your Terms of Service should be serious in tone, since after all, they are a legally binding agreement
    • The tone needs to be consistent with the tone of the rest of your website
  • Make sure your Terms of Service comply with applicable state and federal laws
    • It is important that your website comply with state and federal laws that deal with everything from consumer protection and deceptive trade practices, to privacy, data collection and intellectual property laws

Make sure your Terms of Service are Enforceable

Hopefully your company is never involved in litigation over something that happens with your website, but if it is, there are ways to increase the likelihood that a court will consider your company’s terms of service fair to users and enforceable.

  •  Use clickwrap rather than browsewrap terms
    • A browsewrap agreement simply states that by browsing the site, website users agree to the website’s terms of service
    • Clickwrap terms require users to affirmatively agree to the terms of service by clicking an “Accept” button before they can create an account or make a purchase through the website
  • Make the terms conspicuous
    • The key is making sure that the users have “actual knowledge” of the terms and a “meaningful opportunity” to review them before they are enforceable
    • Set the link to your terms of service apart from other links on your website (i.e. larger font or a different color)
    • Also, make sure that significant provisions (like an arbitration clause) are bold, capitalized or both
  • Keep the terms out of pop-ups
    • Avoid using a pop-up as a device for users to view the terms of service—most users have a pop-up blocker set on their browsers so the terms of service may go unseen
  • Require users to scroll before clicking “agree”
    • Requiring users to scroll through the terms before agreeing to them provides further evidence that users had a fair chance to review them
  • Keep your terms of service from being unfairly one-sided
    • Not a good idea to allow the company the right to change its terms at any time and without notice to its users

Conclusion

Having a properly drafted Terms of Service for your website is extremely important. If you are interested in having an attorney draft a Terms of Service agreement for your website or have any questions regarding these agreements, please contact us at (214) 821-2300


Posted in Privacy
Vela Wood
Vela | Wood is a boutique corporate law firm that focuses on small businesses, entrepreneurs, and startups.