Writing your own terms of use can be an imposing task for anyone. People often assume that small print is highly complex legal jargon that is both boring and largely irrelevant. Consider your own use of websites, how often have you actually read the terms of use? The simple fact is that most people never look at the small print. For a website operator that wants to be legally protected, however, terms of use on their website are absolutely vital.
Write in a Clear, Friendly and Organized Manner
One of the basic factors in writing terms of use that is often overlooked is the importance of maintaining a friendly demeanor. Just because terms and conditions might be full of legal jargon doesn’t mean you should go out of your way to write them in an imposing and unfriendly manner. On the contrary, there is the very real possibility that a customer – one who actually reads the terms of use – might get scared away from your business altogether by intimidating terms. Informing potential customers of your terms in a friendly and positive manner not only makes them easier to understand but also raises the possibility that if a dispute does arise, you just might find people all the more willing to cooperate.
Similarly, it is important to have your terms of use organized in a clear and accessible manner. No one likes to deal with a maze of unorganized legalese and it is in each party’s interest to avoid confusion as much as possible. For instance, Amazon.com only has 26 conditions of use. Given the size and range of the company, this is an extremely small number.
How to Begin Your Terms
The very first paragraph of your terms of use should be an acceptance of terms clause. You want to make sure that the reader understands that by accessing and using your website, they accept and agree to be bound by the terms and provisions of the agreement. For example, something along the lines of:
By accessing and using this website, you accept and agree to be bound by the terms and provision of this agreement. In addition, when using this website particular services, you shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
ANY PARTICIPATION IN THIS SITE WILL CONSTITUTE ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THE ABOVE, PLEASE DO NOT USE THIS SITE.
This will help ensure that the proceeding TOS is legally enforceable and that the user did, in fact, agree to the terms and conditions.
Disclaiming Accuracy of Information
Now that you have considered the overall style and begun writing the terms of use, the next issue is protecting yourself from any – well, at least as much as you can – legal liability.
An important clause that most website’s terms of use will have is one disclaiming any responsibility for the accuracy of the information on the website. For example, consider including a statement such as: “This site and its components are offered for informational purposes only; this site shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the site, and shall not be responsible or liable for any error or omissions in that information.” Such a statement will help protect you against liability in the event that someone relied upon your information available on your website.
Along the same theme, you should also include a disclaimer for any liability resulting in the use of your website. This liability might arise from someone actually following any tips you might suggest or even just using the website itself. For example, in a very rare situation someone might have an epileptic seizure brought about by viewing a certain video on your site. A disclaimer addressing these issues can help protect you from liability.
Intellectual Property Rights
Possible copyright infringement is another common issue that can come up websites. It is imperative to include some information about where someone – either a third-party or the owner of the copyright – can report infringement. At the very least, consider including a simple statement in the terms of use making your email available to anyone that believes their intellectual property rights have been infringed upon.
Advertisements
The FCC has numerous regulations regarding what you have to disclose in advertising. First and foremost, if you are endorsing a product on your website and getting paid to provide that endorsement, you must disclose that you’re being paid. On the other hand, if you have no relationship with the product whatsoever no disclosure whatsoever is required. In any event, it is wise to include a brief statement in your terms of use stating that there is the possibility that you are being compensated for endorsements, but that you still take your reputation and credibility very seriously and only endorse products that you have personally tried and/or researched.
Data and Privacy
Another important issue is the companies privacy policy. Companies will often hold sensitive data belonging to their customers such as contact details, credit card numbers, bank accounts, and purchase history. Not only does a website operator want to protect themselves, from liability regarding such issues, it is also in their interest to put their customers minds at ease by explaining how that private information will be protected and used. Fraud is a serious crime and is fairly prevalent in the internet world. Reassuring people that their information is safe and that your company follows all the guidelines that the law demands will be comforting to readers. Make sure people understand how their data is processed and that it will not be passed on to other companies.
Delivering Goods
When supplying goods it’s vital that you make clear that you are only partially responsible for the delivery and condition of goods. Most companies will use a third party to ensure the deliveries are made, but once that package is collected from you, the responsibility lies with the courier. In your terms and conditions consider allowing a few extra days for ‘acceptable delivery times’. Unless you are shipping food stuff, the delivery time will not affect the state of the goods and most people are reasonably understanding of the occasional late delivery.
Other Considerations
There is an almost limitless number of issues that can come up, and most sites will have specific issues to worry about; but here are some more highly regulated areas that might give rise to legal liability:
- failure to operate a secure server that stores personal information;
- failure to identify and assess internal and external risks to the security of personal information;
- failure to monitor the effectiveness of security of personal information and update security measures as indicated by changes in website operations;
- offering monthly subscription or membership payment models, or any payment scheme where payment is made over time after the delivery of the product or service;
- sharing of personal information with others for purposes of direct marketing;
- permitting third party service providers such as website maintenance and SEO service providers or hosting service providers to have access to the internals of your server;
- transmission of personal information outside the website’s secure system or across public networks;
- operation of a blog or forum that permits users to upload text or files;
- operating a website that targets children or at least by virtue of graphics, text, and products or services would be attractive to children under 13;
- serving third-party cookies (e.g. Google Analytics);
- serving behavioral ads (e.g. Google’s AdSense);
- use of a competitor’s trademark in keyword-triggered ads; and
- “borrowing” someone else’s privacy policy without detailed analysis of how it fits your own specific business and marketing practices.
And this is only a limited, non-exhaustive list! As always, if you’re highly concerned about the potential for legal liability, it might be prudent to consult an attorney in drafting your terms of use.
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