Legal Considerations for Website Terms of Service

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If you run a website, you may already be familiar with the concept of website's terms of service (“TOS”). If you are just starting out with your own site, you may not be familiar with these and need to get a handle on what is involved. In either case, terms of service can help to protect the owners of a website from liability to those who use the site or others, and should be an essential part of any website you own or design.

The first question you should ask yourself when preparing terms of service for your site is “What type of business am I in with this site?” Are you simply providing information? Are you a passive site that does not collect information but merely allows others to post on your site without censoring those postings? Or are you a fully interactive site where products and services are actually being bought and sold over your site? What kinds of products and services are you offering? Are they concerns about minors accessing your content? What about if a user posts something hurtful to someone else?

Each kind of site is going to have its own legal challenges to consider. What your terms of service will do is actually create a sort of contract between you as the owner of the site and anyone who views the content, uses its information or services, or purchases your products. As such, your TOS needs to consider all of the possible problems that could come up with the use of your site and its products and services, and come up with a reasonable solution for mitigating liability for those issues.

Trademarks, Logos and Content

One of the biggest issues on the Internet is violation of others' intellectual property. This is often done by mistake, but can nevertheless harm your legitimate business interests. Make sure that your users understand that the trademarks and logos-either licensed from third parties or your own-belong to you and that users do not have a license to use them for their own purposes. The same thing goes for website content and copyright. Make sure that all of your users know that any content that is on your website is copyrighted. Because you own it, users need permission to use it and/or to pay you royalties to license its use. Your competitors also need to know that they are not entitled to copy and use content from your website because of this copyright.

By the same token, you should also address what you do with user-submitted content and what your obligations are with respect to that content. If you have the kind of site that allows users to submit content, you need to tell users that they are giving you the rights to that content and that you can do what you want with it. Also, you need to make clear that you do not have to pay for user-submitted content and that it is not confidential. Your terms of use should stipulate that you can share user-submitted content with third parties and that the user is granting you a license to use the content worldwide for whatever purpose you want to use it for.

Third-Party Content

Probably the next most important clause that should go on a website terms of use is language that states that you are not endorsing or responsible for third-party content. If someone does submit that content, make sure that you shield yourself from any liability that might exist in case they have infringed on someone's intellectual property rights. You do not want users posting copyrighted material or trademarked images on your site without some sort of protection between you and those users allowing you to remove the infringing content and shielding you from liability to third-parties or requiring the user to indemnify you for posting the infringing content on your site.

If your site has links to third-party advertisers or product providers, be sure to disclaim any liability concerned with the products and services bought from those sites through those links. No need to inherit their liability, you will have enough of your own as a website owner.

Between You and the Users

It is also important to spell out what the prohibited or acceptable uses are for your website. These are pretty standard clauses, but you want to make sure that you put folks on notice that they cannot use your website for any illegal purposes. Feel free to list those purposes in specific terms. For example, you do not want your site to become a hub for prostitution, drug deals, or child pornography, or you can find yourself on the hook for those users' illegal conduct. As a result, you may also want to consider remedies available to you should someone violate those terms, such as termination of their accounts, deletion or redaction of their postings, etc. Be careful, though: some cases have held that the right to edit content can make you jointly responsible for it.

Due to data breach concerns, it is important that you maintain control over who has access to personal information on your site. It is also important, however, that users be put on notice that they are responsible for anything that happens under their password and are obligated to report lost or stolen passwords. Even if it is a simple password for a user to get on your site, there is probably some clever hacker out there who can find a way to manipulate it and gain access beyond the point where you want users to go. You will need to have a plan in place for dealing with that situation should it occur.

Limitations Of Liability

When creating a terms of use policy, be sure sure that it has limitations on the liability and the appropriate carve-outs for jurisdictions that restrict those limitations with regard to warranty exclusions. You should include a very broad indemnification clause that holds users responsible for violations of your terms of use policy. You might even want to get a release of liability from all your users. That way you are not responsible for any liability or damages users may experience as a result of using the website. Finally, consider inserting a choice of law provision, which stipulates where certain issues can be argued.

Getting Help

Unfortunately, even though it has been around for a few years now, internet law is still fairly new. As a result, many questions have come up regarding how it is applied, who has jurisdiction, how enforceable TOS's can be, etc. As a result, while you can prepare terms of service on your own, it may be advisable to at least have them reviewed by an experienced attorney. If nothing else, they can give you ideas for other clauses you may wish to include. On the other hand, they may be able to put together your terms of service much more quickly than you could on your own because of their experience and use of forms.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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