Terms of Service for Your Website

Terms of Service for Your Website
by Susan Basko, Esq.

If you have a website that offers any kind of interaction or service, you need a Terms of Service (TOS) or  a Terms of Service and Use (TOSU).  The terms are interchangeable, but TOSU tends to list the responsibilities of the user in greater detail.   Here, we will call them both TOS.

The TOS forms a legally-binding contract between the site owner and the user.  It is also possible that violation of some TOS may be violations of the Computer Fraud and Abuse Act (CFAA), the Federal Criminal statute that lists computer crimes.  

Therefore, because of the incredible importance of the TOS, the TOS should be:
  1. Written by a lawyer.
  2. Written by a lawyer who knows internet law.
  3. Written by a lawyer who can write well.
  4. Written specially for your site.
  5. Written in clear language that can be easily understood by most everyone.
  6. Available on the site to be viewed by the public, before joining or paying anything.
  7. Not posted as a scroll and click.
  8. State some method of agreeing with the contract.  This is often by using the site.
  9. Posted in big enough font with plenty of spacing and appropriate numbering.
  10. Not contain extra verbiage or repetition.
  11. Be divided into pertinent sections with useful titles. 
  12. Written after the website is ready for launch, but before it is launched.
  13. Written by the lawyer after viewing and using the site and discussing with site owners.
  14. Updated frequently to address changes in the site, changes in policies or practices, or concerns that have arisen through use or abuse of the site.
  15. Every TOS is tailor-made for that site and service.
  16. Some sites may have multiple TOS to address different types of users or segments of the service provided.
  17. A TOS is never completed; it is constantly growing and changing.
  18. A TOS represents a significant, necessary, ongoing legal expense.   
  19. The TOS should be adequately budgeted for.  It is a start-up cost and an ongoing cost for the life of the site.  
The TOS should address these and many other topics:
  1. Copyright ownership of any user materials.
  2. Copyright ownership and use of site materials.
  3. Allowable use of the site.
  4. Disallowed uses of the site.
  5. Dispute resolution, remedies, liquidated damages.
  6. Conduct and speech of users. 
  7. Privacy policy and compliance with privacy laws.
  8. Subpoenas and queries from legal entities and how these will be handled.
  9. Explanations of costs and payments for using the site.
  10. Explanation of what the site provides; disclaimers. 
  11. DMCA information.
  12. Contact information.  
When I write a TOS:  First, I have to see the site and work with it, play around a bit and see how it is functioning.  I will have many questions. Once I think I have a good grip on what the site does and how the users will interact with it, I will write  a draft TOS.  After that is looked at, I will make needed changes.  Then, as the site is used and difficulties or abuses arise, and as any proposed changes are to be made to the site or policy, I will be informed promptly. Then, I will update the TOS to reflect this added knowledge or the changes.  Maintaining a good TOS is an ongoing process that spans the life of the site.