What Is a Terms of Service Agreement?
A Terms of Service agreement is a contract between your company and the end user that outlines the terms and conditions under which the company provides services. In order for someone to use your online services, they must first perform an affirmative action that shows they agree to the Terms of Service. Typically, this is part of the user registration process. It may be as simple as a checkbox that reads: “I agree with the Terms of Service.” The words “Terms of Service” are hyperlinked to a page that provides the registrant with the entire agreement. Depending on how many services or membership types your business has, it may be necessary to have more than one Terms of Service agreement so that users can accept or decline additional offerings.
So, to summarize, a Terms of Service agreement is only used by those who sign up to use services, features, or access certain information found on your website. If someone doesn’t make an account, they won’t see or need to accept the Terms of Service.
Related: User Agreements: What Are They? Do You Need One?
Should a Website Have Both Agreements?
Is a Business Attorney Required to Create a Terms of Service Agreement?
Depending on the industry you’re in, you may need certain disclosures included in your company’s Terms of Service agreement. Examples of disclosures that may be required include The Children’s Online Privacy Protection Act which explains what information is collected about children who are under the age of 13 years; the Digital Millennium Copyright Act; and any applicable HIPAA concerns that may apply.
Terms of Service can be a beneficial risk management tool for your business since they explain the conditions users must follow, may contain steps users can take to enhance their experience with the site, and perhaps most importantly, contain applicable disclaimers and indemnifications. A business attorney can be very beneficial as they can choose the proper terms and conditions that best serve the needs of your company as well as to protect it.
Other Important Topics That May Be Addressed by a Terms of Service Agreement
As mentioned, Terms of Service agreements provide rules to users about how they can (and can’t) use your website. They won’t have access to your site or its offerings as a registered member until they agree to the terms. Other important topics that may be addressed by a terms of service agreement includes forum activity. For example, if users can talk with each other, the Terms of Service may state that users may not post or share defamatory content, harass, or spam others.
One type of disclaimer that may be included relates to the information on the site. For example, it may state that the information and tools on the website are for informational or educational purposes only and that they are not to be taken as professional advice. When users accept the agreement, they are stating they understand that everything on the site is for educational use only and shouldn’t be confused with professional advice.
If users can generate content of any sort related to the site, the Terms of Service may explain that you or your business owns all of the generated results within the website, or not, if your company sells those results. It may also explain how to download or otherwise save or export results or creations, depending on site functionality. The agreement normally includes extremely stern language related to applicable intellectual property rights and restrictions, such as prohibitions against reverse engineering, copying, renting, and several other important protective restrictions.
Finally, a Terms of Service agreement may include a termination clause. It explains the reasons when and why user accounts may be terminated. It may state that accounts may be terminated without cause or notice and that information associated with the user account may or may not be destroyed and that the company is not liable for such actions. It may include how others may report an account for violating Terms of Service. This may include, but certainly isn’t limited to, reporting comments for review.
The termination clause also explains how users may terminate their accounts. It often involves using the registered email to contact the website owner to inform them of their desire to terminate the account or that they no longer accept the terms of service. Depending on the company, there may be various ways a user can terminate their account, but the company may have several things they must do to change, delete, alter, or transfer the account.
Larsen Law: Denver, Colorado Business Attorney