Defining the Terms of a Terms of Use

In my previous post “Steal This Privacy Policy” I discussed why it is essential that you have a customized website privacy policy and periodically review and update it to reflect your current practices. Often overlooked but equally important is the Terms of Use (or Terms of Service) statement.   Generally speaking, while a privacy policy lets users know what information is collected and how it is used, a Terms of Use establishes the permitted uses of your website, and the obligations and responsibilities related to such use.  Think of the Terms of Use as a “do’s and don’ts” for your visitors and users.

In most instances and jurisdictions, if drafted properly, a Terms of Use is a legally binding contract between you and your website visitors and users.  For most organizations, a website is a valuable commodity, i.e. one that publicly promotes a business’ brand and image.  Having the ability to exercise control is important in establishing and maintaining its value.  As with any venture, websites can also be a source of potential legal liability, so the Terms of Use also allows website owners to disclaim certain obligations, liabilities and damages that, in the absence of such disclaimers, might leave them liable for monetary damages.

To be the most effective, a Terms of Use needs to be tailored to match the specific website activities and the functionality and features provided.  In general, however, there are some terms that are typically included in a Terms of Use statement. Limiting potential monetary damages is essential to any Terms of Use, as the potential risks may far outweigh the benefits provided by your website.   Equally important is the protection of your intellectual property, including logos, designs, and original content.

Many websites allow users to post content, such as a comment section on a blog.  In such instances it is crucial that you ask for certain assurances regarding the content, as well as set expectations as to permitted topics and language.  Reserving the right (but not the obligation) to review posts and delete content is therefore vitally important in order to protect your organization and promote civility.  Even terms related to choice of law and venue – where a claim must be filed and what law will be applied – is important to consider, thereby avoiding situations in which you could be compelled to defend a claim in another state.

Your website’s Terms of Use is the contract that governs what users may and may not do on your website.  It delineates the rights and obligations of each party.  The more feature-rich your website, the more complex your Terms of Use will need to be.  Although as a blogger and occasional tweeter, I appreciate brevity, I do advise that when drafting a Terms of Use it is best to be as exhaustive as possible. It will provide your organization the maximum protection and reservation of rights.

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