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A terms of service set rules that users must agree to in order to use your website, application, or software program. While there are no laws requiring websites to implement a terms of service agreement, having one in place is recommended.
There are several different names for a terms of service agreement:
- Terms of Use
- Terms and Conditions
- Website Terms and Conditions
What are Terms of Service?
Terms of service, often abbreviated as ToS, are legal agreements between service providers and their clients or users. Terms of service are typically published on a company’s website for user to review and agree to before using the service.
ToS agreements can include various elements, including:
- Accountability provisions
- Liability provisions
- Opt-Out provisions
- Privacy policies
- Acceptable usage
- User rights and responsibilities
- Payment details for memberships, subscription fees, and the like.
In short, a ToS is simply a contract where the owner clarifies the conditions that a user must meet to use its service. Some examples include:
- Copyright and the use of content
- Rules users must follow when interacting with other users
- Cancellation of user accounts
Reasons to Use Terms of Service
There are currently no laws in place that require websites or companies to use a terms of service agreement. However, a ToS is helpful to set expectations for your users and prevent abuse. The agreement outlines what the users can expect while using your website or product and how users must behave.
While websites are not required to have a ToS, they are required to have a privacy policy. Privacy policies protect users' sensitive data:
- Email addresses
- Names
- Billing Information
- Shipping Addresses
Copyright Infringement
Your ToS agreement informs users that you own the site and its content. Any unauthorized use constitutes copyright infringement. You own everything on your site, and the ToS helps preserve ownership of your content.
Owned content can include:
- Content such as blogs and photos
- logo
- website design
Clauses connected to content ownership are called Intellectual Property clauses.
Abusive Users
Additionally, having a Terms of Service agreement in place gives you the right to terminate user accounts should they violate the agreement. These clauses make it clear that users can have their accounts canceled and even permanently banned if they abuse the website.
Governing Law
The terms of service agreement establishes "Governing Law." The Governing Law clause determines the jurisdiction and state laws that oversee, enforce, and interpret the contract.
For example, if your company is based out of Los Angeles, you would include a statement in the ToS indicating that California laws govern the agreement. Additionally, the ToS operates under US federal law. If you were to move jurisdictions, this section would need to be updated.
Here is an article about why you need a Terms of Service agreement.
Image via Pexels by PhotoMIX Company
What Should Terms of Service Include?
A terms of service is extensive and has various parts, but you will want to include:
- A clear definition of your company and properties
- Links to separate documents detailing your policies, such as privacy, security, and return policies
- Disambiguation or definition of keywords and phrases
- User rights and responsibilities
- A statement regarding age restrictions to comply with the Children's Online Privacy Protection Act of 1998 (COPPA)
- A list of the responsibilities community members must follow regarding commenting on your blog posts or communicating with other users
- An outline of the illegal behavior that can get an account removed or banned
- Detail inappropriate behavior, including spamming, posting pornographic materials, or linking to such.
- A statement about applicable fees and their related services
- Intellectual property clauses about who owns what contents
- An ambiguous "change" clause states that you reserve the right to modify or change any part of the agreement.
- Termination clause about banning someone
Should Reading the Terms of Service Be Made Mandatory?
Do people even take the time to read a terms of service? If there is ever a dispute, making it mandatory for new members to opt-in to your ToS is the safest route. The best method is to use a clickwrap agreement.
Should You Use a Terms of Service Template?
Terms of service appear simple. However, they are meant to meet highly complex and specific scenarios and are legally binding contracts.
Each terms of service agreement protects the owner and user, so it must match your:
- Business model
- Business processes
- Applicable jurisdiction
Downloading a free template online will not accomplish these goals. It is recommended to work with a technology lawyer to help you draft your terms of service.
Who Needs Terms of Service?
Anyone building a website for their business should include a terms of service agreement on their website. Even if you are a small business, a ToS can save you many headaches later.
In some cases, you may enlist a lawyer to help you. Lawyers can:
- create your ToS document for you
- simply review the one you already created
Small businesses should consider getting a lawyer to create their ToS if:
- they are involved in e-commerce
- gather user's personal data
- marketing their intellectual property online
- talking to an audience under 13 years
Here is an article about terms of service and who needs it.
Are Terms of Services a Contract?
Terms of service are terms that a user must accept before using or purchasing a site's service, whether that is:
- Purchase of goods
- Access to an application
- Access to membership or registration-based site
When the user accepts the term by either checking a box, hitting a button or digitally signing, the ToS becomes a legally binding contract.
If you update your terms, you must notify customers, users, or consumers. They have no way of knowing if your ToS have been updated on their own, so they cannot agree to the new terms.
It is recommended that you do not include clauses that allow you to change the terms without prior notice. Otherwise, users are accountable to all future contacts that do not even exist yet. Including this clause may make your ToS unenforceable.
Examples of Terms of Service
Creating a terms of service agreement can be intimidating. A prime example of a good Terms of Service document is Google's ToS.
At the very beginning, Google calls out how easy it is to skip reading the ToS and just accept it, but they implore you to keep reading.
What makes Google's ToS so good?
- It is relatively short compared to other ToS documents.
- It is easy to read.
- It includes a table of contents.
- Use of bold headers and bullet points.
- Minimal legal jargon.
While we are not saying you should just copy another site's ToS, you will want yours to be as good as Google's.
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Meet some of our Terms of Service Lawyers
Terence B.
Terry Brennan is an experienced corporate, intellectual property and emerging company transactions attorney who has been a partner at two national Wall Street law firms and a trusted corporate counsel. He focuses on providing practical, cost-efficient and creative legal advice to entrepreneurs, established enterprises and investors for business, corporate finance, intellectual property and technology transactions. As a partner at prominent law firms, Terry's work centered around financing, mergers and acquisitions, joint ventures, securities transactions, outsourcing and structuring of business entities to protect, license, finance and commercialize technology, manufacturing, digital media, intellectual property, entertainment and financial assets. As the General Counsel of IBAX Healthcare Systems, Terry was responsible for all legal and related business matters including health information systems licensing agreements, merger and acquisitions, product development and regulatory issues, contract administration, and litigation. Terry is a graduate of the Georgetown University Law Center, where he was an Editor of the law review. He is active in a number of economic development, entrepreneurial accelerators, veterans and civic organizations in Florida and New York.
Rosario A.
I'm a Washington-licensed lawyer specializing in trademark practice and with an extensive trademark education and academic background. I currently work with domestic and international businesses seeking trademark protection in the U.S. by conducting trademark searches, providing legal advice, submitting USPTO applications, and preparing responses to office actions. I'm passionate about trademark law and always looking forward to helping small and medium businesses promote their value by having a registered federal trademark. If you have questions or concerns about trademark/copyright/IP licensing and require legal advice, feel free to contact me so we can have a first chat.
Ashley H.
I have 10 years experience providing general counsel, in the form practical and timely legal advice, under strict deadlines to individuals and various business unit stakeholders, balancing commercial needs with legal concerns at large corporations and start-ups. I am skilled at reviewing, analyzing, drafting and negotiating commercial and government contracts globally for the procurement and sale of services and goods. I also help clients ensure compliance with regulations (including data privacy), laws and contractual obligations and protect, enforce and exploit intellectual property rights and support in the development of IP strategy. I am a Certified Information Privacy Professional/United States (CIPP/US) licensed by the IAPP - International Association of Privacy Professionals.
Diane D.
Over 15 year experience drafting, reviewing and negotiating contracts both as in-house counsel and in law firms, including my own law firm.
August 18, 2020
William F.
William L Foster has been practicing law since 2006 as an attorney associate for a large litigation firm in Denver, Colorado. His experience includes drafting business contracts, organizational filings, and settlement agreements.
August 24, 2020
Jeffrey P.
Mr. Pomeranz serves as the principal of Pomeranz Law PLLC, a boutique law firm representing clients across myriad industries and verticals. Before founding the firm, Mr. Pomeranz served as Senior Vice President, Legal & Compliance and General Counsel of Mortgage Connect, LP in 2017. Mr. Pomeranz also served as Counsel, Transactions for Altisource Portfolio Solutions S.A. (NASDAQ: ASPS) beginning in 2013, and was based in the company’s C-Suite in Luxembourg City, Luxembourg. Mr. Pomeranz began his career with Mainline Information Systems, Inc. as an in-house attorney.
August 25, 2020
Rinky P.
Rinky S. Parwani began her career practicing law in Beverly Hills, California handling high profile complex litigation and entertainment law matters. Later, her practice turned transactional to Lake Tahoe, California with a focus on business startups, trademarks, real estate resort development and government law. After leaving California, she also served as in-house counsel for a major lending corporation headquartered in Des Moines, Iowa as well as a Senior Vice President of Compliance for a fortune 500 mortgage operation in Dallas, Texas prior to opening Parwani Law, P.A. in Tampa, Florida. She has represented various sophisticated individual, government and corporate clients and counseled in a variety of litigation and corporate matters throughout her career. Ms. Parwani also has prior experience with state and federal consumer lending laws for unsecured credit cards, revolving credit, secured loans, retail credit, sales finance and mortgage loans. She also has served as a special magistrate and legal counsel for numerous Florida County Value Adjustment Boards. Her practice varies significantly from unique federal and state litigation cases to transactional matters. Born and raised in Des Moines, Iowa, Ms. Parwani worked in private accounting for several years prior to law school. Her background includes a Certified Public Accountant (CPA) certificate from Iowa (currently the license is inactive) and a Certified Management Accountant (CMA) designation (currently the designation is inactive). Ms. Parwani or the firm is currently a member of the following organizations: Hillsborough County Bar Association, American Bar Association, Tampa Bay Bankruptcy Bar Association, National Association of Consumer Bankruptcy Attorneys, and the American Immigration Lawyers Association. She is a Fellow of the American Bar Association. Ms. Parwani is a frequent volunteer for Fox Channel 13 Tampa Bay Ask-A-Lawyer. She has published an article entitled "Advising Your Client in Foreclosure" in the Stetson Law Review, Volume 41, No. 3, Spring 2012 Foreclosure Symposium Edition. She is a frequent continuing legal education speaker and has also taught bankruptcy seminars for the American Bar Association and Amstar Litigation. She was commissioned by the Governor of Kentucky as a Kentucky Colonel. In addition, she teaches Immigration Law, Bankruptcy Law and Legal Research and Writing as an adjunct faculty instructor at the Hillsborough Community College Ybor campus in the paralegal studies program.
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