Cover Your Butt with “Terms Of Service” Policies for your Website
On a scale of one to 10 — with 10 being excruciatingly boring — I’d rank website terms and conditions of use agreements as maybe a twenty. Dry as dust. The only thing less spellbinding than T&Cs might be the privacy policies that often accompany such gray type.
Why do companies insist on including them on their sites? After all, website owners aren’t even required to create or publish these contractual agreements between the site owner and the end user.
Top wordpress web hosting .. just saying (wink).
“In addition, if your website collects information from, or is targeted to users in other countries, the laws of those countries may apply and may present compliance challenges,” Larose says. “And if a website collects certain types of information (financial, health), there may be federal laws that require that the information be protected, and site owners would generally want to disclose to the user how the site is in compliance with those laws.”
“Privacy policies are advisable if you collect and use personally identifiable information (pii),” she says, adding that in the U.S., the only restriction on collection and use of pii is that you accurately disclose what use you will make of the pii and how that pii will be shared, sold or licensed to unrelated third parties (such as list brokering).
And if you’re contemplating adding T&C documents to your site, Larose suggests they be readable by the end user. “Terms and conditions that are difficult to read and navigate, [that] are lengthy and full of ‘legalese,’ are not helpful,” she says. “Remember, the end user is reading this on a computer screen.”
She says that if your website is more than static (for example, if the user is installing code or software and you need to enforce a license), there should be a “clickwrap agreement” and the user should be presented with the option to print out the agreement. If you use headings, you should provide the user with an index and jump links.
“If the information is to be shared, provide clear information as to how or whether the user will be able to opt out of sharing,” she says. “Provide headings with jump links to pertinent information. Keep the policy current and update it frequently as the business model changes.”
“What most people don’t realize is that website content is covered by copyright law, including terms & conditions and privacy policies,” Larose says. “In addition, the operation of each site is different and the FTC has held companies to the ‘promises’ they make to consumers in their privacy policies.
Publishing poorly worded or ill-advised conditions and policies could result in the documents being tossed out of court in the event you need to enforce terms of sale against a consumer. “Companies have been investigated by the Federal Trade Commission and have had to pay fines and penalties for misleading privacy policies,” she says, citing Sony, BMG, Iconix Brand Group, Dave & Buster’s and BJ’s Wholesale as examples.
So where does an entrepreneur with a website go to learn more about creating online conditions and policies? Larose suggests you find an attorney who has experience with online policies and how they work and interact. “You need someone who is not learning on your dime,” she says. “Someone who can easily and cost-effectively walk you through the issues and spot the traps.”
They may not be able to take the dull out of such documentation, but your site — and your butt — will be covered.
Legal Considerations of Terms of Service
legal considerations of terms of serviceTerms of service. Also known as TOS. Who needs them? Who reads them? The answer is: everybody and nobody. It’s a pity, too, that the answer to the second question there is “nobody,” because the TOS is one document every user should read. It is, after all, a legal document to which they are signing their name.
So what do you do if you need to create a TOS? Since it is, after all, the official rules clients must follow when using your products and services, it is the stuff of lawsuits. You don’t want to be too vague, too specific, too confusing or too brief.
To help you navigate that pile of contradictions, here are a few tips for drawing up a TOS without coming to any legal harm.
Don’t just copy and paste
Terms of service may seem pretty much the same across the board, but don’t let the legalese’ samey-ness fool you. There are important distinctions hidden in each monolith of text. That said, it is generally okay to use a free terms of service template, also known as a terms and conditions template. These tools, often available for free on the web, let you put together your TOS part by. This means that your legalese is written for you, and allows you to cover all the bases.
Be thorough when defining protected content
A customer might understand that copying and pasting an article from your magazine goes against copyright, but he or she might not realize the logo is off limits. Be sure to define how every type of product and service may or may not be used.
Don’t forget about user rights.
If you run a website, for example, to which users submit content, you’ll need to include a clause explaining what you intend to do with that content. If, as is often the case, the user is relinquishing all rights to the content he or she submits, you need to put tis in writing.
Don’t have too much fun with the language
Writing for today’s market, you need to strike that delicate balance between overly stiff, inscrutable language and language that is too casual for its own good. You want your customers to understand your terms of service. Moreover, you want them to get through the whole document! However, it’s important not to shirk the necessary legalese. After all, your TOS is a binding contract.
The key here is to use formal language but keep it short and sweet. Some companies even offer a plain-speech version – a sort of a launch pad into the document itself. These rewrites translate the terms of service into human English, but the signature part lies at the end of the actual document. Check out Google’s approach to this problem, for example, or Pinterest’s.
The Main Components Of Terms of Service
main components of terms of serviceTerms of service (TOS for short) are, as the name suggests, a set of rules to which a user must agree before making use of a service. It is one of the most important legal documents to have in order before you open your business. Below I have listed the main components of terms of service, complete with explanations.
Like many legal documents, the TOS derives a chunk of its formality from the use of “official terms.” The first sentence of a TOS should introduce the entities involved and define the terms by which they will be referred throughout. Usually, these are generic terms, like “Terms” and “Services.” For example:
The following Terms of Service (“Terms”) dictate permissible access and use of all services and products (“Services”) provided by Porcupine Products, Inc.
Description of allowable use
This section outlines the permissible ways in which the company’s services may be used. Detail is key, but keep it as short as possible (you want your users to actually read it). The best way to do this is to list which acts are not allowed, as opposed to all the actions that are. Here’s an example:
Disclaimer and Limitation of Liability
In this section, you outline your business’ liability for damages incurred by or to customers. Often these subjects are split into two sections. Here’s an example:
The Products and all included content are provided on an “as is” basis without warranty of any kind, whether express or implied.
BOINK BOINK, INC. SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Boink Boink, Inc. takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Products. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOINK BOINK, INC. SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES, LOSS OF PROFITS, DATA OR REVENUES, OR OTHER INTANGIBLE LOSSES, RESULTING FROM ANY OF THE FOLLOWING:
· YOUR USE OF OUR PRODUCTS
· YOUR INABILITY TO ACCESS OR USE ANY OF OUR PRODUCTS
· UNAUTHORIZED ACCESS OR USE OF OUR PRODUCTS, INCLUDING UNAUTHORIZED ACCESS OR USE OF YOUR TRANSACTIONS, TRANSMISSIONS OR CONTENT
· ACCESS OR USE OF OUR PRODUCTS BY ANY THIRD PARTY, INCLUDING OFFENSIVE, DEFAMATORY OR ILLEGAL ACTIONS
There must be a statement which the reader may authorize with his or her signature, verifying that he or she has read, understood and agreed to the Terms of Service. An electronic signature, or an affirmation that the reader agrees is sufficient.
Terms Of Service: What Is It?
A Terms of Service, or TOS, is a set of rules that a user must agree to before they can engage in services or use a product. It can also serve as a disclaimer under certain conditions, such as for website use. A properly executed Terms of Service is legally binding for both parties.
A Terms of Service agreement usually has many different sections, such as definitions, user rights and responsibilities, and disclaimers. Terms of Service can change often, and they will need to be re-accepted as changes are made to the agreement.
It is important to any company or business to include as much information as possible in their Terms of Service to avoid problems in the future. Getting legal counsel for the Terms of Service can ensure no major points have been missed and that the Terms of Service is legally binding to users.
Terms of service perform two essential functions. The first is to educate your customers on the rules of using your products and services. The second is to protect your company from lawsuits. The TOS is a simple enough document to draw up, whether you’re using a free terms of service generator or working from a sample. Terms of service should be one of the first documents issued to your clients, and you should be sure to get it read and signed by each client before proceeding with their business.
Part One – Language
A TOS starts off by familiarizing the reader with the terms that will be used throughout the document. Generally these terms are fairly, well, general ones, such as “Terms,” “Services,” “The Company,” etc.
Part Two – Rules of the Road.
The TOS then goes on to outline the rights and responsibilities of the user. The key to this section is to keep it short and sweet while including all relevant detail. The best approach is to tell your client what they can’t do rather than what they can do. Omission is more illustrative than inclusion. Plus, it’s a good idea to keep the TOS as short as possible so people actually them.
Part Three – What Is and Is Not Your Company’s Fault
Limit your liabilities. Limit them as much as you can, and make their limits clear. For example:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARTHURMACARTHUR, INC. SHALL NOT BE LIABLE FOR AN YDIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OR LOSSES, WHETHER TANGIBLE OR INTANGIBLE, RESULTING FROM AUTHORIZED OR UNAUTHORIZED USE OF OR ACCESS TO OUR PRODUCTS
You also might want to include a disclaimer or return policy, particularly if you’re in the retail business. This protects you from customers blaming you for damaged goods:
SUPERDUPER, INC. IS NOT RESPONSIBLE FOR THE CONDITIONS OF ITS MERCHANDISE. THE COMPANY SELLS ALL ITS MERCHANDISE ON AN “AS IS” BASIS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY DAMAGES INCURRED IN THE TRANSFER OR USE OF OUR PRODUCTS BY YOU OR ANY THIRD PARTY.
Part Four – Verification
Put a statement at the end like, “I have read and agreed to abide by PenDragonPencil’s Terms of Service.” If you’re issuing a paper TOS, follow this with a place for the user to print his or her name and sign and date the form provide instructions as to how the document should be returned to the company. If your TOS is online, you can just have the user insert his or her initials and hit the “I Agree” button.