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Drafting Terms and Conditions for Websites

By John DiGiacomo

These days, it’s not enough to just have a website. With concerns about cybersecurity growing, a successful and effective website should include a Terms of Use agreement setting forth rules and rights to the user. In addition to boilerplate language standard of any Terms of Use agreement, certain provisions should be included to address concerns that address internet concerns. While it can be tempting to find a Terms of Use agreement (or cut-and-pasted portions of one) on the internet, an efficient agreement should be designed to fit the website owner’s specific business needs and goals.

Term, Termination, and Severability

Often considered boilerplate for standard contracts, provisions such as term, termination, and severability can be overlooked when drafting terms for a website that a user might only visit for a short time. A user should be aware that the contract they are assenting to begins when the user first accesses and uses the website and ends when they are no longer using the website.[1]

In addition, good contract practice is to include a severability clause indicating that if any part of the contract is deemed invalid, that provision should be severed to allow the rest of the contract to be upheld.

Rules and Prohibitions

The user should be warned of the rules and prohibited activities laid out in a Terms of Use agreement. Such prohibitions should include aiding third parties to violate the Terms of Use, using the site for illegal or illicit activities, breaching a user’s authorized access to the website to obtain the company or website owner’s data or the stored data of users, and using the information available on the site for illegal and infringing purposes, for example, selling, transferring, or copying. If the website requires all end users to be over the age of 18 or 21 (either by the nature of the business or website activity), such an assurance must be made by the user before entering the site via a pop-up window.

Ownership of IP

The content of the website can be an asset in itself. That means that a website should have an adequate intellectual property (IP) policy. A copyright policy, for example, puts users on notice that the website’s material is protected by copyright. An IP provision can let users know if they can use the website’s content, and if so, how they can do so legally.

Users should be put on notice of what types of content are protected by respective IPR (Intellectual Property Rights), such as audio recordings, video recordings, photographs, and text.

This provision should also address ownership of third-party content, explicitly stating that the website owner is not liable for infringement on protected material of a third party.

Privacy

In an online world riddled with concerns about the collection and misuse of personal information, a website’s privacy policy should be airtight as to not open up the owner to liability. Although not usually included in the Terms of Use, it is necessary to reference the site’s privacy policy in the Terms of Use, even if it gives the user a link and tells them to “just read it.” While a website owner cannot effectively be shielded from liability, a robust Terms of Use agreement coupled with an accessible privacy policy can serve to deter prospective lawsuits.[2]

If the website uses cookies, it is important to notify users that 1) the website uses cookies, 2) the user can disallow cookies by resetting the web browser, though this may affect the functionality of certain features of the site, and 3) that the cookies used by the website cannot be used to collect stored data on a user’s hard drive.

 If the site’s cookies are used to gather user information, users must be explicitly apprised of how the cookies are being used, what information is being collected and for what purpose, how the information will be protected, and how the user can instruct the website’s owner to remove the user’s collected information from the records. It is also recommended to list data retention laws of the website owner’s respective state as well as applicable data privacy laws.

Consent to be Bound

To have an effective Terms of Use agreement, the agreement must bind users to some contractual legal obligations. An essential element of any Terms of Use agreement, the language of this provision must put users on notice that they are agreeing to be bound by the provisions set forth in the website’s Terms of Use. This can be done using a clickwrap agreement, in which the user clicks a button or checks a box to manifest assent to the terms, or through a browserwrap agreement, in which a banner is displayed notifying the user that they assent to the website’s terms if they continue to interact with the website.

Conclusion

The better a Terms of Use agreement is drafted, the better the chance it will shield the owner or business from liability and deter infringement or misuse of the website’s content. To get started drafting an effective Terms of Use agreement, contact an attorney or visit www.revisionlegal.com for a legal consultation.


[1] See Nolo.

[2] See Revision Legal.

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