Terms of Use

Website terms of use or terms of service are essentially a contract or agreement between the owner of the website and the user. From a legal standpoint, terms of use are a valuable tool to protect the site owner and its business as they minimize any potential liability to the site users. Terms of use also protect any intellectual property belonging to the website and ensure that the site is not used for any illegal purposes, discussed in more detail below.

There are typical provisions that terms of use should contain. However, a business should work in conjunction with its lawyer to narrowly tailor the terms of use to the specific business, industry, and website.

Where Should the Terms of Use Be Placed?

To be most effective and to be legally enforceable, the website owner should consider where it places the terms of use on the website. Without getting into too much legalese, there are two types of terms of use called Clickwraps and Browser Terms of Use. The main difference is that Clickwraps require the site user to actively accept the terms of use, while Browser Terms of Use are just made available for the user to look at somewhere on the site. Brower Terms of Use are very common, however are less likely to be enforced in court. Therefore, if possible, a website owner should require some active acceptance of the terms of use from the website user. 

What Should the Terms of Use Contain?

Acceptance. Among other things, this provision states that the user consciously accepts and agrees to be bound by the terms of use policy. It also serves as an introduction to the rest of the policy.

Changes to the Policy. The website owner should expressly reserve the right to make changes to the policy in its sole discretion.

Intellectual Property Rights. This provision states that all of the content on the site is owned by the company. It also describes specifically what the users can and cannot do with the content of the website, such as restricting use for personal use only. Lastly, it serves as a limited license to the users to use the materials on the website for specific purposes.

Prohibited Uses. This section expressly prohibits certain uses on the website that are contained in the list. Examples include illegal uses, introducing viruses, or uses that would interfere with the site.

User Contributions. If the site allows users to upload material to the site or post messages and comments, the site owner should require any such content to meet the standards for the website, grants itself a license to use the content, and disclaim any responsibility or liability for the content.

Monitoring and Enforcement. This section allows the website owner the right to remove any user contribution, such as when third-party rights have been violated. It also gives users notice that the site owner can take other steps necessary to protect itself such as take legal action against the user or terminate the user’s access to the site.

Content Standards. If your website allows users to upload/post material onto the site in any form, then your terms of use should contain a section that users must comply with in order to retain access to your website. This section, along with the prohibited uses section, go a long way to limit the site owner’s exposure to liabilities.

Disclaimer of Warranties. The disclaimer of warranties section ensures that a site user cannot rely on a warranty of merchantability or other common warranty if a user suffers harm from using the site.

Limitation on Liability. Similarly, the exclusion of liability section limits the owner’s liability for any loss or damage arising from the use of the website by a user.

Privacy Policy

Privacy policies are essential to most websites now. Privacy policies explain to the user of the site how the website owner collects, uses, discloses, and manages personal information (PI) that is collected on the site. Many businesses collect PI from customers and users of sites and all such businesses should consider having a privacy policy in place. It makes users of the site more comfortable with disclosing PI by demonstrating that the website and business have thought these issues through and will take precautions when dealing with users PI.

Privacy policies should be adjusted depending on the type of PI that is collected, user interaction on the website, users’ geographic location, and the industry. Also, privacy policies should reflect the business’ actual policies, and not what it believes the user expects to see.

Where Should the Privacy Policy Be Located?

Ideally, the privacy policy should be easily accessible and posted in a conspicuous location on the site. Where ever PI is collected on the site, there should be a link to access the policy. To cover a business’ bases, a link can be placed in the footer of the website so it is accessible from every page of the site. Additionally, whenever a business is collecting user PI, there should be an opportunity for the user to consent and affirm that they have had a chance to review the privacy policy.

What Should the Privacy Policy Contain?

What Type of Information Is Collected and How. This is a straightforward section and details what information the site asks users for. Importantly, it gives the site an opportunity to address what type of information it defines as personal information.

How Is the Information Used. This is a good opportunity for the site owner to fully list all of the ways that the business uses the users’ PI. Examples are for billing purposes, to fulfill orders, or to notify the user about other products the business offers. The business should disclose whether it intends to use the PI for direct marketing purposes in the future.

Disclosure of User’s Information. The site should address the circumstances in which users’ PI may be disclosed to third parties. This might include vendors or service providers, affiliates, to comply with the law, or in the case of user consent. The site should also identify what types of PI will be shared in these circumstances.

Choices About How Information Is Used and Disclosed. The privacy policy should inform users of their various options about how the website uses and discloses their PI.

Accessing and Correcting Information. How are the users able to access and change their PI? This may require logging into the website or sending an email to the site owner.

This is not an exhaustive list of the sections that your terms of use or privacy policy should contain but should act as an overview of some important sections you should look to include. As stated, these documents need to be modified depending on the website and business. So while templates are a good starting point, its beneficial to have an attorney draft or review your policies to ensure compliance with laws. MW Legal Group can assist you with drafting your terms of use, privacy policies, and many other important business documents. Please reach out to Miles Williams at miles@mwlegalgroup.com for more information.