All websites need to post their online terms of service in order to notify visitors of its rules and protect themselves from a wide variety of potential legal liabilities. This help guide explains the main sections and key considerations when creating terms of service for your website.
Note that this document is meant for websites based within the United States. It may not be appropriate for sites hosted in other countries or may need additional language.
This section explains that, by using the website and any services provided, the visitor agrees to abide by the terms and conditions. These terms are a binding legal agreement. Also, the section specifies any age restrictions you impose on visitors.
"Browsewrap" is the term used for websites that allow users to accept their terms and conditions simply by navigating through the site. "Clickwrap," on the other hand, refers to sites that require visitors to affirmatively agree to the terms by clicking an "Accept" button, or checking a similar box, before creating an account or making a purchase.
Browsewrap is typically only used for static sites that are primarily informational in nature with little to no interaction with the site or others and do not offer products or services for sale. Clickwrap is recommended for all sites that go beyond browsewrap by selling products and services or allowing users to post content or interact with others.
Visitors are granted the limited right to use the website so long as they conform to the requirements set out in the terms.
You, as the website operator, have the right to display advertisements, some of which may be targeted based on the type of information on the site, queries made, or other information submitted by visitors. The types and amount of advertising on the site is subject to change.
This section explains your rules for user conduct and provides a lengthy list of prohibited uses of the website, including using the website
Visitors are responsible for ensuring that their use of the site conforms to all local, international, and other laws that may apply.
This section, if included, explains whether you knowingly collect, or allow others to collect, personal information or data from visitors under 13 years of age and, if so, provides your reasons for doing so. Website operators that collect this information are required to comply with the Children's Online Privacy Protection Act (COPPA), which includes obtaining verifiable parental consent to your collection and use of data pertaining to children.
This section is included if you allow visitors to the website to create user accounts or profiles. Those that do so are called "Members." By creating an account, each member agrees that all information submitted when creating an account is true and accurate and promises to update and maintain the accuracy of this information at all times. Each member is the sole authorized user of his or her account and is responsible for keeping passwords and account access information confidential.
This section is included if you indicate that visitors can submit content on the site. After providing a definition of such "User Content," the section explains that you do not monitor, support, or endorse the submission or publication of any particular user content and, therefore, may not be held responsible for it. You may remove user content at any time and for any reason, without notice.
Visitors maintain ownership of all user content submitted and grant you a license to use, publish, copy, and modify the content as you choose.
You may review and investigate visitors' use of the site and take any appropriate action against them that you determine necessary in your sole discretion.
Here, you explain that the site may contain links and advertisements to third-party websites and services, called "Third-Party Resources." Visitors agree that third-party resources are not under your control and that you are not responsible for the content, products, or services they provide.
In this section, you reserve the right to modify, add to, suspend, or terminate all or part of the site or its services at any time with or without providing prior notice to visitors.
Here, visitors are told that you are under no obligation to provide customer support or website maintenance. Even if you regularly provide support and maintenance, this language will help you disclaim any liability should a visitor bring a legal action claiming your negligence in this regard has caused damages.
Visitors agree not to use the site to gain improper access to restricted parts. If you provide visitors with account access to areas of the site that are restricted to the general public, such visitors agree not to share their password and other access information with others.
With the exception of any user content that may be submitted by visitors, you own all intellectual property rights to the content on the website. Visitors agree not to sell, copy, or otherwise misappropriate your intellectual property and to keep all copyrights, trademarks, and other intellectual property notices on all copies of your content.
This section outlines the process for reporting any allegations of copyright infringement on your website according to the proper procedure outlined under 17 U.S.C. 512(c) and then designates your copyright agent responsible for receiving and investigating such notices. This information is necessary to comply with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).
These requirements include that you (a) provide notice to your users of your policies regarding copyright infringement and the consequences of repeated infringing activity; (b) follow the proper notice and takedown procedures, including removing, or disabling access to, the material; providing notice to the individual responsible for such material; and providing such individual with an opportunity to provide proper "counter-notice" and complying with applicable procedures thereafter; and (c) designate an agent to receive notices of infringement from copyright owners.
If you sell goods or services through your website, then you should outline your sales policy in this section, including any conditions of sale, return policies, guarantees, payment details, fees, and shipping terms. Doing so helps avoid potential disputes and lawsuits with aggrieved visitors.
Likewise, you should include any refund and cancellation policies you may have in order to put visitors on notice and avoid conflicts.
The disclaimers include many of your most important terms and conditions. Among these, visitors are told that the site is provided on an "as is" basis, and potential express and implied warranties are disclaimed in order to prevent visitors from seeking to hold you liable for promises you do not intend to offer. This also includes disclaimers for any loss or damages that may occur to visitors' computers, internet connections, or user content.
Visitors are told that the content on your website is for informational purposes only and does not offer any professional advice, including legal, financial, or medical advice.
This is another important section because it limits your potential liability for visitors' use of the site to a maximum of the greater of $100 or amounts paid by the visitors in the past six months.
Visitors also agree not to bring any claims personally against any of your subsidiaries, officers, employees, contractors, agents, affiliates, partners, suppliers, or licensors.
Here, visitors agree to indemnify you against (meaning pay for) any claims by third parties that result from visitors' use of the site.
Visitors agree not to pursue any claim or action they may have against you or your affiliates.
You may terminate visitors' access to any part or service on the site at any time in your sole discretion, without notice.
You may also update these terms at any time. Visitors' continued use of the site constitutes acceptance of such updates. You will provide visitors with notice of such updates by any reasonable means, including by email or posting notice in a prominent place on the site.
You have the right to take any and all appropriate actions you deem necessary should a visitor breach these terms. This may include suspending, blocking, or terminating their access.
If you choose to include this option, all disputes relating to the site, services, or these terms are required to be resolved through mandatory binding arbitration administered by the American Arbitration Association.
Visitors assign you the right to use and fully exploit all feedback or complaints they submit in any manner you wish, commercial or otherwise.
The last section includes the website operator's contact information, which is an important requirement that helps visitors report any violations of your terms that they may witness and to contact you for help and other matters.
As you complete your online terms of service, you will need to provide certain relevant information. This includes any policies you may have concerning member accounts, posted content, age restrictions, refunds, cancellations, sales policies, dispute resolution, and more. Depending on the type of website involved, some of these categories may be needed.
Use the information you collected to complete your online terms of service. We make this easy by guiding you each step of the way and helping you to customize your document to match your specific needs. The questions and information we present to you dynamically change depending on your answers and the state selected.
It is always important to read your terms of service thoroughly to ensure it matches your needs and is free of errors and omissions. After completing the questionnaire, you can make textual changes by downloading it in Microsoft Word. If no changes are needed, you can simply download the PDF version and sign. These downloads are available by navigating to the Documents section of your account dashboard.
Next, you need to make the terms of service available on your website for users to read. There are two ways to do this: 1) by requiring users to first agree to the terms prior to using the site's products or services (called "clickwrap") or 2) by allowing users to implicitly agree to the terms simply by using the site (called "browsewrap"). If the website sells products, collects user information, or allows public posts, it needs to use clickwrap in order to confirm that the terms of service have been communicated to the user. Browsewrap is only recommended in cases where the site is restricted to passively offering information.
It is easy to forget the ins and outs of your website's terms of service. Periodically reviewing it will help you stay familiar with any responsibilities or requirements so that you can determine when it needs changes or additions.
As your policies change or new laws pass, you will need to update your website's terms of service. At a minimum, websites should do this every year or two, but it is often necessary to make more frequent updates.