An effective Terms of Use agreement for your business’ website will form the basis for all subsequent interactions between visitors and your company. All interactions on your website are governed by your company’s Terms of Use (also known as the Terms of Service or a Terms and Conditions agreement). Once the visitor agrees to the Terms of Use, they function as a legal contract.

Essentially, the Terms of Use set the rules for visiting and using your website. For your Terms of Use to be effective, they should be drafted specifically for your website, and incorporate what you expect from and intend to provide visitors. 

As a small business attorney, I spend a lot of my time drafting tailor-made Terms of Use for my clients. I have also done my fair share of helping my clients deal with the aftermath of ineffective Terms of Use. If you want to protect your business and your intellectual property, follow these rules to ensure your website Terms of Use can get the job done.

Provisions To Include in Your Terms of Use

While all websites, mobile apps, and subscription services should have a Terms of Use page, they are especially relevant for businesses involved in e-commerce or the sale of products through an online order form. Before explaining what should be included in your Terms of Use, you should understand why your business should employ a Terms of Use page. While not a legal requirement under the laws in the United States, using at least a basic Terms of Use agreement on your business’ website is a smart idea to protect your business.

Well-crafted Terms of Use should always be tailored to the expected user content and services provided by your business’ website. There is no one-size-fits-all solution to Terms of Use pages. With that in mind, there are some baseline sections all effective Terms of Use will include.

User Consent to the Terms of Use

Your Terms of Use page establishes a contract between the business and the website visitor. At the start of the page, the Terms of Use should clearly inform the visitor that they automatically agree to your Terms of Use by using the website.

It’s a good idea to start with an agreement to be bound by the Terms of Use because it notifies the visitor that the Terms of Use page is a legal contract. The assent to the Terms of Use should also apply whether a visitor is an entity or an individual. Well-written Terms of Use will clarify that consent of an entity user also binds affiliated parties such as the entity’s employees, affiliates, representatives, agents, etc.

Certain businesses will want to promote a more user-friendly experience. One way to establish additional trust is to request that visitors agree to the Terms of Use by checking a box. The extra step of pressing a button to check a box is an explicit acknowledgment that the user agrees to be bound by your Terms of Use. The check box may appear before additional functions of your website become accessible. 

Prohibited Uses

Standard Terms of Use will explain to visitors that specific actions are forbidden. While this section will be crafted to fit the details of your business, some standard prohibitions include:

• Copying or transferring any of your business’ intellectual property without license
• Illegal activity
• Unauthorized access to systems or data
• Altering or modifying the website
• Hacking the website’s security infrastructure
• Using the website to transfer any immoral, illegal, or potentially damaging material
• Using the website to violate a third party service’s privacy or copyright rights

This section of your Terms of Use should also clarify that what constitutes a breach of the Terms of Use is in your sole discretion.

Contractual Relationship Length and Termination

The Terms of Use should outline not only that the visitor is bound by a legal contract, but when the contractual relationship begins and ends. The language used in the Terms should adequately inform the visitor that the contract starts the moment the user accesses your website and ends when the visitor leaves the site.

However, there are areas of the Terms and Conditions that will bind your company and the visitor beyond their usage of the website. The Terms should highlight the provisions that continue past termination of the agreement.

Notices

Somewhat similar to a legal ‘Contact Us’ section, notices can be used to provide a visitor with information regarding how to reach your company. If there are particularly common issues, the Terms of Use notices section can provide additional contact information to more efficiently resolve certain situations.

Legal Compliance

A visitor should be notified in the Terms of Use that they are obligated to ensure any data, information, media, or property they transmit complies with all relevant laws. Additionally, the Terms of Use must specify that the visitor represents that they are the legal owner of data by transmitting it on your business’ website.

If there is a risk a visitor may transmit data that infringes third-party intellectual property rights, the Terms of Use may require another check box or click as an affirmative representation of the visitor’s rightful ownership of the data.

Liability Waiver

The Terms of Use should explicitly limit any liability caused by a visitor that violates the Terms of Use or any applicable laws, or from any information found through linked sites and third-party services. Here you explain that your company will not be responsible for the visitor’s violations, and state that the Terms of Use require the visitor to indemnify your business if any related losses are incurred.

Governing Law

One of the wonders of the internet is that you can attract website visitors from across the globe. For this reason, it’s essential that you inform visitors of what country and state laws they are agreeing to be bound by in the Terms of Use.

Maintenance and Updates

Your website will need downtime for regular maintenance and updates, and it also may have unanticipated interruptions. Provide an outline of your policy regarding downtime and whether regular users will receive advance notification in the Terms of Use. 

Link to Privacy Policy

Well-designed websites will not only have a robust Terms of Use but also a properly tailored Privacy Policy that explains how your business will collect, store, and use personal data. In fact, if you collect any confidential information from your visitors, you are legally required to include a Privacy Policy on your website. While the Privacy Policy is a separate agreement, it’s best practice to provide a link to your website’s Privacy Policy in your Terms of Use and to incorporate your Privacy Policy in your Terms of Use.

Should I Have a Lawyer Draft My Terms of Use?

A quick Google search will return countless results for website Terms of Use templates. Can a lawyer really add value when copying and pasting seems so convenient (and free!)?

My bias as an attorney aside, remember: the entire point of having a Terms and Conditions page on your website is to prevent or prepare for legal problems. If you try to cut corners when drafting your business’ Terms of Use page, it can cost you much more in the long run through expensive litigation. And if it turns out that the template you used was deficient, your company may end up liable for significant damages.

If you want to make sure that your website’s Terms of Use will do what they need to do, hire a professional. Mod Law Firm can help tailor, draft, and update the Terms and Conditions page your website needs. Schedule a consult here!