While there are no specific laws requiring websites to define and implement ToS, it’s highly recommended to have one in place for legal protection. In fact, it can be a way to protect you and your business by limiting any liability if a customer were to take legal action in court.
Elements of a Terms of Service
Terms of Service can have different formats. It can also vary depending on your type of business or the nature of your website. However, there are basic elements common among websites.
Copyright is the legal right of the business owner of intellectual property. This means that only the original creators of the website (and anyone they give authorization to) have the right to further use or reproduce the material for a given period. This also protects your website content and business identity. At times, the copyright clause is embedded into the Permitted Use section of the ToS. (More on this in a minute!)
The Governing Law clause determines the jurisdiction and laws (province, state, or country) that oversee, enforce, and interpret the Terms of Service. This gives certainty to the laws applied and helps avoid confusion regarding the applicability of laws to your ToS, in case a dispute arises. In cases of varying states or countries, the governing law clauses ensure that the parties agree upon which codes apply to the ToS.
Limitation of Liability is a disclaimer that states you cannot be held responsible for errors in any of the contents of your website. It also limits the amount and type of compensation you may be responsible for, thus reducing the risk of a claim against you. Also, If your site allows visitors to post content, your clause should limit your liability from their posts. For example, it should state that you don’t endorse or tolerate derogatory and offensive language, thus you are not responsible for their statements.
Another important element of a Terms of Service is the Permitted Use clause. This highlights whether or not your website users are allowed to access and use the content from your site. In this section, you set guidelines and restrictions about copying and reproducing the contents and elements of your site, such as data, graphics, images, video clips, and written texts.
Why Your Website Needs a Terms of Service
Now that you better understand the various facets of a ToS, let’s talk more about why you need one.
1. Prevent Abuse
Your Terms of Service prevents abuse by setting out your right to limit the language of site visitors or terminate accounts of people who commit abuses.
As a legally binding contract, it sets the rules and guidelines that users must agree to and follow when on your website. It informs users of the consequences if they abuse your website content in any manner.
Some abusive actions that can be prevented by having a ToS include:
- Impersonating other people.
- Infecting (or attempting to infect) the website with malware or other viruses.
- Posting defamatory, discriminating, and foul content.
- Providing false information.
- Spamming other users.
- Stealing content.
- Unauthorized advertising.
- All other abusive conduct.
All of these can result in having those users who are found abusing your website temporarily suspended or permanently banned.
2. Own and Protect Your Content
Your Terms of Service enables you to own and protect your content through the clauses that address copyright and intellectual property.
Remember, you own your logo, brand name, website design, audio and video clips, and written content (except for user-generated content, unless users are informed that any content created by users is theirs).
In agreeing to your ToS, users agree not to broadcast, distribute, publish, reproduce, or sell any material found on your website without your consent. It’s important that you establish that your website content is protected by international copyright laws.
3. Establish Trust and Professionalism
The Terms of Service of your website demonstrate legitimacy and professionalism, giving your visitors and business a level of trust and professionalism. Being transparent in your rules and regulations leads to a higher level of customer confidence, satisfaction, and trust in you and your business.
In addition, having a ToS makes it outright clear for your website visitors and users to know what they can expect from you and what you expect from them.
4. Clearly Define the Billing Terms
If your website includes subscriptions, paid memberships, or any form of payment from customers, then you should have a clause that covers the billing or payment terms. Within this, you can explain the billing cycles, payment methods, and refund policies.
Keep it clear and easy to understand. This is your opportunity to define what payment methods you accept, what circumstances accept refunds, and what terms are acceptable to your business.
5. Enforce the Agreement
Having a Terms of Services for your website allows you to enforce your rules and regulations to your site visitors and users. This is particularly useful in instances of breach of contract.
Should you ever find your business in a position where you need to take a customer to court (or vice versa) due to copyright infringement, payment disputes, or other issues, the ToS will serve as a basis for your policies. It will be an essential tool to help you avoid problems or reduce business risks.
While you’re not legally obliged to create and enforce one, it’s best and highly recommended that you have a Terms of Service for your website. You may be collecting personal information and payments from website visitors and customers at some point. Having a ToS will protect you should concerns or issues arise.