Terms of Service: Reasons to Use and What to Include
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A terms of service set rules that users must agree to in order to use your website, application, or software program. While there are no laws requiring websites to implement a terms of service agreement, having one in place is recommended.
There are several different names for a terms of service agreement:
- Terms of Use
- Terms and Conditions
- Website Terms and Conditions
What are Terms of Service?
Terms of service, often abbreviated as ToS, are legal agreements between service providers and their clients or users. Terms of service are typically published on a company’s website for user to review and agree to before using the service.
ToS agreements can include various elements, including:
- Accountability provisions
- Liability provisions
- Opt-Out provisions
- Privacy policies
- Acceptable usage
- User rights and responsibilities
- Payment details for memberships, subscription fees, and the like.
In short, a ToS is simply a contract where the owner clarifies the conditions that a user must meet to use its service. Some examples include:
- Copyright and the use of content
- Rules users must follow when interacting with other users
- Cancellation of user accounts
Reasons to Use Terms of Service
There are currently no laws in place that require websites or companies to use a terms of service agreement. However, a ToS is helpful to set expectations for your users and prevent abuse. The agreement outlines what the users can expect while using your website or product and how users must behave.
While websites are not required to have a ToS, they are required to have a privacy policy. Privacy policies protect users' sensitive data:
- Email addresses
- Names
- Billing Information
- Shipping Addresses
Copyright Infringement
Your ToS agreement informs users that you own the site and its content. Any unauthorized use constitutes copyright infringement. You own everything on your site, and the ToS helps preserve ownership of your content.
Owned content can include:
- Content such as blogs and photos
- logo
- website design
Clauses connected to content ownership are called Intellectual Property clauses.
Abusive Users
Additionally, having a Terms of Service agreement in place gives you the right to terminate user accounts should they violate the agreement. These clauses make it clear that users can have their accounts canceled and even permanently banned if they abuse the website.
Governing Law
The terms of service agreement establishes "Governing Law." The Governing Law clause determines the jurisdiction and state laws that oversee, enforce, and interpret the contract.
For example, if your company is based out of Los Angeles, you would include a statement in the ToS indicating that California laws govern the agreement. Additionally, the ToS operates under US federal law. If you were to move jurisdictions, this section would need to be updated.
Here is an article about why you need a Terms of Service agreement.
Image via Pexels by PhotoMIX Company
What Should Terms of Service Include?
A terms of service is extensive and has various parts, but you will want to include:
- A clear definition of your company and properties
- Links to separate documents detailing your policies, such as privacy, security, and return policies
- Disambiguation or definition of keywords and phrases
- User rights and responsibilities
- A statement regarding age restrictions to comply with the Children's Online Privacy Protection Act of 1998 (COPPA)
- A list of the responsibilities community members must follow regarding commenting on your blog posts or communicating with other users
- An outline of the illegal behavior that can get an account removed or banned
- Detail inappropriate behavior, including spamming, posting pornographic materials, or linking to such.
- A statement about applicable fees and their related services
- Intellectual property clauses about who owns what contents
- An ambiguous "change" clause states that you reserve the right to modify or change any part of the agreement.
- Termination clause about banning someone
CC verified
Should Reading the Terms of Service Be Made Mandatory?
Do people even take the time to read a terms of service? If there is ever a dispute, making it mandatory for new members to opt-in to your ToS is the safest route. The best method is to use a clickwrap agreement.
Should You Use a Terms of Service Template?
Terms of service appear simple. However, they are meant to meet highly complex and specific scenarios and are legally binding contracts.
Each terms of service agreement protects the owner and user, so it must match your:
- Business model
- Business processes
- Applicable jurisdiction
Downloading a free template online will not accomplish these goals. It is recommended to work with a technology lawyer to help you draft your terms of service.
Who Needs Terms of Service?
Anyone building a website for their business should include a terms of service agreement on their website. Even if you are a small business, a ToS can save you many headaches later.
In some cases, you may enlist a lawyer to help you. Lawyers can:
- create your ToS document for you
- simply review the one you already created
Small businesses should consider getting a lawyer to create their ToS if:
- they are involved in e-commerce
- gather user's personal data
- marketing their intellectual property online
- talking to an audience under 13 years
Here is an article about terms of service and who needs it.
Terms of Service Templates
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Are Terms of Services a Contract?
Terms of service are terms that a user must accept before using or purchasing a site's service, whether that is:
- Purchase of goods
- Access to an application
- Access to membership or registration-based site
When the user accepts the term by either checking a box, hitting a button or digitally signing, the ToS becomes a legally binding contract.
If you update your terms, you must notify customers, users, or consumers. They have no way of knowing if your ToS have been updated on their own, so they cannot agree to the new terms.
It is recommended that you do not include clauses that allow you to change the terms without prior notice. Otherwise, users are accountable to all future contacts that do not even exist yet. Including this clause may make your ToS unenforceable.
Examples of Terms of Service
Creating a terms of service agreement can be intimidating. A prime example of a good Terms of Service document is Google's ToS.
At the very beginning, Google calls out how easy it is to skip reading the ToS and just accept it, but they implore you to keep reading.
What makes Google's ToS so good?
- It is relatively short compared to other ToS documents.
- It is easy to read.
- It includes a table of contents.
- Use of bold headers and bullet points.
- Minimal legal jargon.
While we are not saying you should just copy another site's ToS, you will want yours to be as good as Google's.
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Daniel D.
Attorney with 14 years experience in transactions, civil litigation and criminal law
"Great Job. Daniel is very responsive and he understood what I needed done."
Justin A.
I am a lawyer who helps small businesses, nonprofits, and startups with a wide variety of agreements, corporate formation, and corporate governance. I earned my BA from Tulane University and my JD from the University of Chicago Law School. Before starting my own practice, I worked at an international law firm in New York City. Outside of work, I am on the board of the nonprofit Seattle REconomy (which runs the NE Seattle and Shoreline tool libraries) and I enjoy gardening, baking bread, and outdoor activities with my spouse and two dogs.
"Justin provided excellent, expedient service and made sure my needs were met satisfactorily."
Don G.
Texas licensed attorney specializing for 22 years in Business and Contract law with a focus on construction law and business operations. My services include General Business Law Advisement; Contract Review and Drafting; Legal Research and Writing; Business Formation; Articles or Instructive Writing; and more. I am able to draft and review contracts, and have experience with, contract law and business formation in any state. For more insight into my skills and experience, please feel free to visit my LinkedIn profile or contact me with any questions.
"Don is very responsive, knowledgeable, efficient and professional."
Lolitha M.
Small firm offering business consultation and contract review services.
"Did great. She was responsive even after hours, will use again!!!"
Scott S.
I specialize in business law and contracts, with an emphasis on commercial transactions and negotiations, document drafting and review, employment, business formation, e-commerce, technology, healthcare, privacy, commercial real estate, data security and compliance. Specifically, I've drafted, reviewed and/or negotiated thousands of MSA's, NDA's, TOS', SAAS, sales, service, managed services, referral, reseller, royalty, finder’s fee, employment, contractor, consulting, advertising, marketing, manufacturing, distribution, management, artist, author, agency, photography, rental, lease, vendor, partnership, website, platform, application, privacy, non-compete, non-circumvent, confidentiality, IP ownership and licensing agreements so I'm very familiar with these types of documents. Practicing law since 2006, I worked in-house before starting my own solo practitioner law firm in 2011. I've worked with individuals and start-ups, Fortune 500 companies, and every type of entity in between, always providing quality legal work that fits the exact needs of the person and/or business. I’m a graduate of the Benjamin Cardozo Law School and also have an English degree from Penn.
"Very helpful and appreciated being able to go over the contract revisions and clarification questions I had, thank you!"
January 24, 2022
Michelle F.
I provide comprehensive legal and business consulting services to entrepreneurs, startups and small businesses. My practice focuses on start-up foundations, business growth through contractual relationships and ventures, and business purchase and sales. Attorney with a demonstrated history of working in the corporate law industry and commercial litigation. Member of the Bar for the State of New York and United States Federal Courts for the Southern and Eastern Districts of New York, Southern and eastern District Bankruptcy Courts and the Second Circuit Court of Appeals. Skilled in business law, federal court commercial litigation, corporate governance and debt restructuring.
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Steve C.
I am a corporate and business attorney in Orange County, CA. I advise start-ups, early-growth companies, investors, and entrepreneurs in various sectors and industries including technology, entertainment, digital media, healthcare, and biomedical.
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Public Company
Terms of Service
Washington
Do I need to agree to the Terms of Service and Privacy Policy in order to use a website?
I recently came across a website that I would like to use, but before I can access its services, I am required to agree to their lengthy Terms of Service and Privacy Policy. As an individual concerned about my privacy and legal rights, I am wondering if it is legally mandatory to accept these terms in order to use the website, or if I have any alternatives.
Merry K.
In most cases, yes, you need to agree to a website's Terms of Service (ToS) and Privacy Policy to use the site or its services. Here's why: 1. Binding Agreement Terms of Service act as a legal contract between you and the website. By agreeing, you're accepting the rules for using the site. If you don’t agree, the website owner has the right to deny you access to their services. 2. Privacy Policy Websites often require you to acknowledge their Privacy Policy to inform you how they collect, use, and store your data. This acknowledgment ensures they comply with privacy laws, such as the GDPR (General Data Protection Regulation) in Europe or CCPA (California Consumer Privacy Act) in the U.S. 3. "Clickwrap" Agreements Many websites require you to actively agree by clicking a button (e.g., "I Agree"). If you don’t agree, the site may block your access to features or the entire platform. 4. Implied Agreement Sometimes, simply using a site implies agreement to its ToS. This is called a "browsewrap" agreement, though it's less enforceable than active consent. In addition, keep in mind that websites that are not owned by a governmental entity are privately owned. Speaking generally, an owner can refuse service to anyone, as long as the owner doesn't violate a law (such as refusing use only to people of a certain gender or race - and usually, even that may depend on what state you live in). Options If You Don’t Want to Agree: Contact the Site Administrator: You can reach out to inquire about alternative ways to access their services. Use an Alternative Service: Look for a service with terms you’re comfortable with. Review Key Clauses: Carefully read the ToS and Privacy Policy to understand what you're agreeing to, especially regarding data use and dispute resolution. Let me know if you'd like help understanding specific terms or policies!
Advertising
Terms of Service
Texas
Can I limit reviews using terms of service?
I recently started a small business and I am in the process of creating a website for my business. I want to ensure that customers are not able to post negative reviews on the website, as this could have a detrimental effect on my business. Therefore, I am interested in learning if it is possible to limit reviews using terms of service.
J.R. S.
Businesses can take steps to discourage or prevent negative online reviews, but they must be careful not to infringe on the rights of consumers and other businesses to post such reviews. The Texas Citizens Participation Act (TCPA) protects the posting of consumer opinions or reviews about businesses. The TCPA statute also allows for dismissal of legal actions based on or in response to a party's exercise of the right of free speech, right to petition, right of association, or arises from any act of that party in furtherance of the party's communication or conduct. If dismissed under this chapter, the court may award sanctions against the party who brought the legal action to deter similar actions.
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Terms of Service
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Can users waive rights in the terms of service?
I am considering creating a website and offering a service to users. I want to make sure that I am properly protecting my rights as the service provider, and so I am looking to create a Terms of Service. I am wondering if it is possible for users to waive their rights in the Terms of Service, and if so, what the legal implications of this would be.
Darryl S.
Yes - that is one of the main purposes of a terms of service is to outline and restrict the user's rights. But you need much more than Terms of Service to properly set up a website and protect your interests (e.g. Cookie Policy, Privacy Policy, etc.). This is one of my areas of focus, so reach out if I can be helpful. d@fixedfeelawfirm.com
App Development
Terms of Service
Texas
Are there terms of service for mobile apps?
I am a mobile app developer and I am in the process of creating a new app. I am looking to ensure that I protect myself and my users by having an appropriate Terms of Service agreement in place. I would like to know if there are any specific Terms of Service that are applicable to mobile apps, and what I should consider when creating mine.
Darryl S.
Yes - you should have Terms of Service created by a lawyer experienced in Ts and Cs for apps and customized for your app's usage.
International
Terms of Service
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How does GDPR affect my terms of service?
I am a business owner in the EU looking to create a terms of service for my website. I am concerned about the impact of GDPR on my terms of service, as I want to ensure I am in compliance with the law and that my customers' data is secure. I am also interested in understanding the implications of GDPR on my business and any additional steps I need to take to ensure compliance.
J.R. S.
The best place to start is on the GDPR website, found here: https://gdpr.eu/what-is-gdpr/. On this page you will see a yellow box on the right side of the webpage that has hyperlinks to three key documents, the Data Processing Agreement, Right to Erasure Request, and Privacy Policy. Those links will take you to downloadable PDF's that you can use and incorporate into your website as a part of your terms and conditions. All three of these documents and their proper usage will aid in any compliance reporting measures. If you need or want additional consultation on specifics and how it applies to your organization, please feel free to reach out.
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