How to write a ‘terms of use/service’ document - Legal documents for online businesses #2
Posted on June 25, 2008
Filed Under Legal |
Like I’ve already stated in the first post in this series on legal pitfalls that may affect your online business, I AM NOT A LEGAL PROFFESSIONAL. The advice and opinions expressed here are solely for the purpose of informing and increasing your knowledge. My aim is to give a framework that any one can use and tips on where and how to find more information.
Obviously for different online businesses the “Terms of Use” document will differ to a reasonable extent. So in this piece I am simply going to give a general framework and some advice on how to come up with one as well as good places to get proper reviews of your document.
After spending hours on end looking for useful information on writing this document , I’ve been able to come up with a framework that will suit a good variety of online businesses. To achieve this I employed a simple technique. I basically have gone through “Terms of Use/Services” documents for big corporations on the internet. Why did I choose to do this ?
I have chosen to do this because these companies spend a fortune on legal advice from legal professionals for the simple reason that mistakes would be extremely costly - literally speaking - for them. Even though you may not be able to shell out huge bucks for these lawyers , by reading these documents ( not copying them verbatim ) you can have a basic understanding of what a good “Terms of Use” document should contain, and what it should protect you from.
The list below is not in any specific order and can be altered, after this list I’ll give a few tips on how best to ‘customise’ it to your needs.
- Introduction : Your introduction can basically give your site’s users, members, clients or customers information about the site as well as the operators or administrators. As much as it should be brief, it should contain enough information to give your users/members/clients or customers a clear picture of those that run the web site and its purpose. Members should also understand that the responsibility to be aware of any changes to the document lies solely with them. You can also go ahead to state that any use in any sense of your site (at whatever point in time) constitutes a total acceptance of all the terms of use/service.
- Restrictions, Signing Up, and Registrations : If your site requires or accepts membership , you should clearly state that you reserve the right to decline membership, that registration information should be true and accurate ( obviously to the best of their ability ). To protect yourself depending on your website, you can add an age restriction clause or ask for parental consent for members below a certain age ie a responsibility for minors clause. If impersonation can become an issue (again this depends on the type of online business you run ) it is also important to add a clause warning against this.
- Availability of the Web Site : To protect your web site from any legal problems if there’s a down time, server crash etc. Simply make it plain that the site can ‘go down’ at any time and you won’t be liable in any form. That you make no guarantees whatsoever, inferred or otherwise, of the suitability, availability , compatibility of the web site for any purpose and that the user is responsible for ensuring that he/she has whatsoever may be needed to use your site.
- Member Conduct : Depending on the online business you run (again), especially if it involves member input in some form , you need to define member conduct. Features that members will have access to as well as the type of content that may be submitted ( non-racist/vulgar/abusive/adult content/ illegal etc ). You should also state the penalty for disobeying these rules and make it clear that the site administrators solely determine who should be penalized and what contents can be said to have flouted the rules.
- Copyright Policy : Your copyright policy should clearly state how and under what circumstances copyright material may be used on your site ( usually written consent for copyright owners will do as a prerequisite). Another important clause I found online is that “Members agree that site operators get non-exclusive, royalty-free, non-terminable right to copy, modify, distribute, show in public and create derivative works in any form, anywhere, from content submitted by members”. This clause permits you to do a lot with content on your site and can protect you from mischievous suits on copyright infringement.
- Suspension and termination of service : This clause should be written in such a manner to entirely reserve the right to suspend or terminate services to any user, and place this decision at your sole discretion. If there’s a membership fee , you should also clearly state that there will be no refunds or rebates if membership is suspended or terminated.
- Liability : This part of the document should exclude you entirely and totally from any form of liability including conduct of members, failure to perform any of your obligations caused by matters beyond your control etc.
- Jurisdiction : You can clearly state that the “Terms of Use” document is governed by the laws of your country or region , and that if any portion of the agreement is invalid or unenforceable by law, the remainder of the agreement remains valid and enforceable
Other clauses that may be added to this type of document/agreement include clauses that define your relationship with business partners and affiliates, Indemnity, Miscellaneous, a disclaimer ( usually all CAPS and bold font ) etc
At some point you’ll need to get real professional advice so please don’t assume that your DIY “Terms of Use” document will be good forever. Actually as time goes on, you probably will need to do a frequent review of it. A good place to do a bit of research and get some information is at this law/legal website or you can go straight to the forums here.
Following my own advice i think its important to state that THIS IS NOT A SUBSTITUTE FOR AN ATTORNEY AND IS NOT LEGAL ADVICE. ALWAYS CONSULT AN ATTORNEY BEFORE USE OF LEGAL DOCUMENTS AS THE LAW CHANGES WITH TIME AND JURISDICTION. THIS IS MERELY A STARTING PLACE FOR YOUR LEGAL INQUIRIES.
Phew. I guess I’m safe here. I’ll soon have the next post in this series up. Remember to subscribe here.
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