WEBSITE TERMS OF USE – DO YOU NEED THEM? By Gail Berritt

Are Website Terms of Use (sometimes called Terms and Conditions) worth posting when most visitors will never read them?  Here is what I recommend.

1.  POST THE TERMS.

You should post Terms of Use unless your site does no more than promote your product or service.  If you sell through your site, provide more than basic information, allow users to post or chat with each other or request information from your visitors, you can protect yourself from liability and lawsuits by posting some basic terms on your website.

2.  THE CRITICAL TERMS.

There is no one template that works for all websites, so be cautioned when copying terms off another website even if it’s a competitor’s.  What can and cannot be done on your site may differ in some critical ways and you may be missing key provisions.  On the flip side, you may be including irrelevant provisions that will confuse and, quite possibly turn off, potential customers. 

Provisions that should always be considered for your Terms of Use include:

•    “Rules of the Road” – what the user can do with the information on the site and what is prohibited.  For example, you can send articles to your friends, but you can’t sell them or post them on another site. 
•    Digital Millennium Copyright Act “Safe Harbor” language to protect against copyright infringement claims. 
•    Disclaimers of liability and warranty. 
•    Choice of law and venue clause.  In the event that you are sued by a user or need to bring an action against a user, you want a convenient jurisdiction to resolve your dispute. 
•    Refund Policy - in addition to posting it at the point of purchase.

If you collect any information from users, even if it’s just an email address, you should include a Privacy Policy.  Your Privacy Policy must accurately reflect your practices regarding that information.  Worse than having no Privacy Policy at all is posting one that is inaccurate.

There are more terms that you will want to consider.  Speak with an attorney or other person (such as your web developer) who is experienced in customizing website terms for clients.

3. MAKING THEM ENFORCEABLE.

Simply posting your terms is not enough if users can’t easily access them.  If they are hidden behind multiple links or in very small type or off in a corner of the page where no one is likely to look, a court may refuse to enforce them.  Even if they are easily found, if you do not require the user to acknowledge the terms, you are taking greater risk that they won’t be enforceable when you need them.  Of course, not all websites lend themselves to having a user click an “I accept” button.  If your site is purely informational, requiring the user to “click through” may be impractical.  But, if your site is interactive, you should require the user to affirmatively acknowledge the terms.  Whether users choose to actually read the terms, is their choice.  Also, make your terms understandable, not a mass of legal jargon, and don’t include things that are irrelevant (see my admonition about relying too heavily on other forms).

With a properly worded and presented Terms of Use, you should be able to sleep better at night.

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