Readers of this blog no doubt have seen a proliferation of Terms of Use on various websites they visit. While most readers quickly peruse these Terms of Use—if even at all—companies should consider publishing (or revising) a Terms of Use on their websites.
What are Terms of Use?
Simply put, Terms of Use (also sometimes called Terms of Service) are contractual terms between a website owner and each user of the site. These terms contain provisions regulating the use of the site and are designed to protect the website owner, for instance, by limiting the website owner’s potential liability to users and by protecting the intellectual property contained on (or accessed through) a website.
What are the typical terms in a Terms of Use?
While no two websites are identical, a Terms of Use typically contains the following items:
- a clause stating that a website user agrees to all Terms of Use;
- a clause reserving the rights to update such Terms of Use;
- clauses specifying the use and ownership of intellectual property contained on (or accessed through) a website;
- a non-exhaustive list of prohibited uses of the website;
- disclaimer of warranties and limitation-of-liability clauses;
- indemnification clauses (i.e., clauses that shift responsibility for harm on the user or some other third-party, not the website owner);
- content standards for user contributions (if applicable); and
- dispute-resolution clauses (i.e., clauses that specify where and how to settle disputes);
Can You Give Me an Example of a Clause that Should Be Included in a Terms of Use?
At a minimum, a website’s Terms of Use should contain a disclaimer of warranties clause like the following (and in uppercase letters):
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
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This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
