Website agreements, often called terms of use agreements or terms of service agreements, are an important part of a website. Website agreements define the contractual relationship between the website and its end users, including the licensing of the website content, the acceptable terms of use for the website, and any limitations of liability. As a business, it is important that you adopt website agreements for your website.
Well drafted website agreements will grant a limited and non-exclusive license to the end user to use the website subject to its acceptable use terms and conditions. Additionally, a good website agreement will take a non-exclusive copyright license from the end user for any user generated content, such as photos or comments, that the user submits to the website. This license is important, as without it the website cannot legally republish the user’s content.
Additionally, well drafted website agreements will contain appropriate limitations of liability and indemnification provisions that will limit the liability of the website owner of require the end user to pay for the defense of the website owner in certain circumstances.
Finally, website agreements should include a privacy policy that complies with all applicable laws, including the EU Data Protection Directive, US state privacy law, California’s Shine the Light Law, and the Children’s Online Privacy Protection Act.
If you seek custom drafted website agreements, contact the website agreement lawyers at Revision Legal today at 855-473-8474.
A well-drafted website agreement is more than a liability disclaimer. It is a comprehensive document that defines the legal relationship between the website owner and every person who visits or uses the site. The following provisions should appear in every commercial website’s terms of use or terms of service agreement.
The terms of use should clearly describe what the website grants to users: a limited, non-exclusive, non-transferable, revocable license to access and use the site for its stated purposes. This grant should be explicitly conditioned on compliance with the acceptable use provisions. Without a clear license grant, the legal basis for users’ right to access the site is ambiguous.
The acceptable use policy defines what users may and may not do on the site. Common prohibitions include: scraping content, using the site for illegal purposes, transmitting malicious code, impersonating other users or the website operator, and violating the intellectual property rights of others. The acceptable use policy is the contractual foundation for suspending or terminating users who violate the terms and for asserting claims against bad actors.
The agreement should clearly state that the website owner retains all intellectual property rights in the site’s content — text, images, graphics, code, trademarks, and other materials. This provision puts users on notice that the license granted does not convey ownership of any website content and that unauthorized reproduction, distribution, or modification of content is prohibited.
If the site accepts user submissions — comments, reviews, photos, videos, forum posts — the terms of use must include a license grant from users to the website operator. Without this license, the website has no legal right to display, reproduce, or distribute the content users submit. The scope of the license should be tailored to the site’s needs: a social platform needs a broad license; a professional services site may need only a limited one. The license should be non-exclusive, royalty-free, perpetual, and worldwide.
Limitations of liability cap the website operator’s maximum exposure for claims arising from use of the site. A standard limitation of liability clause caps damages at the amount paid by the user in the preceding 12 months, or a nominal fixed amount for free services. Disclaimer of warranties provisions disclaim implied warranties — fitness for a particular purpose, merchantability, and non-infringement — that would otherwise attach under state law. These provisions are critical for sites that provide information rather than a guaranteed outcome.
Courts enforce limitation of liability and warranty disclaimer provisions in click-wrap agreements that require affirmative assent. They are less likely to enforce them in browse-wrap agreements, where users are held to terms they may never have read. For maximum enforceability, require users to affirmatively check a box or click a button indicating acceptance of the terms before completing registration or making a purchase.
An indemnification provision requires the user to defend and hold harmless the website operator from claims arising out of the user’s conduct on the site, including violation of the acceptable use policy, infringement of third-party intellectual property rights, or misrepresentation of the user’s identity. This shifts the cost of third-party claims caused by user misconduct from the website operator to the responsible user.
For sites that accept user-generated content, compliance with the DMCA safe harbor requirements under 17 U.S.C. § 512 is essential. To qualify for safe harbor protection from copyright infringement claims arising from user-uploaded content, the site must: (1) designate a DMCA agent and register that agent with the U.S. Copyright Office; (2) adopt and implement a repeat-infringer policy; (3) not have actual knowledge of infringing content or, upon obtaining such knowledge, act expeditiously to remove it; and (4) not interfere with standard technical measures used by copyright owners.
The DMCA policy should be incorporated by reference into the website’s terms of use, and the registered DMCA agent’s contact information should be prominently accessible. A UGC platform that fails to maintain DMCA compliance loses its safe harbor protection and becomes directly liable for user-uploaded infringing content.
A compliant privacy policy is a legal requirement, not just a best practice. Federal statutes require specific disclosures for certain categories of information: COPPA requires specific disclosures and parental consent for collection of personal information from children under 13; the TCPA governs consent for telemarketing and text messages; and HIPAA governs health information. State statutes — including California’s CCPA, Virginia’s CDPA, and Colorado’s CPA — impose additional requirements on businesses that collect personal information from residents of those states. Businesses that operate nationally must comply with the most protective applicable standard.
If you have questions about internet law, contact the internet lawyers at Revision Legal. Call us at 855-473-8474 or complete our contact form.
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