In the footers of many websites, you’ve probably noticed ubiquitous links to terms of service and privacy policies. You have also almost certainly clicked “check-box” acceptances of these terms and conditions- even though you probably didn’t bother to read them (most users don’t read these terms). If no one reads these terms, why bother having them? Just because they aren’t well read doesn’t mean they aren’t binding contracts that could be helpful to your business. There are many situations where having click-through or passive terms of service and privacy policies can be helpful, and here are the top five reasons you may want website terms and policies:
Terms of service are a contract between you and the user of your website. In contracts, parties can agree (with some exceptions) to limit their liability to each other, which is helpful in managing risk associated with online transactions and interactions with customers. If you allow customers to post content online, Digital Millennium Copyright Act takedown policies and agent registrations are important to avoid liability for copyright infringement for content that your customers or others post online.
Choosing the Law
Different states have different laws. It may be worth reviewing your facilities terms of service and privacy policies with an attorney to make sure you’re covered in all applicable states. Having choice of law and venue clauses (or clauses that kick any disputes to arbitration) can be great ways to protect against having to litigation in a foreign state. You can also include jury trial waivers, and other terms that help you control the forum and method of dispute resolution.
Protecting Your Content
Terms prohibiting scraping your website for content, making ownership of your content clear, and addressing what is or isn’t acceptable linkage and use is helpful in ensuring your website and intellectual property is protected from unauthorized use.
Depending on what kind of data you collect online, and what you do with it, you may have legal obligations to disclose to the consumers what you are collecting, how you use and store what you are collecting, how consumers can contact you to obtain copies of their data or request deletion of their data, and more. Many laws are being enacted on consumer privacy on an ongoing basis, and website terms of service and privacy policies are great mechanisms to ensure you are complying with privacy laws in your jurisdiction.
Setting the Rules of the Road
As the terms are a contract between you and the user, they allow you to set the rules of the road for the use of your website. They can include provisions governing acceptable use, allowing you to terminate a user’s access if there’s violation of the terms, and aside from “can’t do” listings, they can provide a list of “can do” listings encouraging your customers to use your website in positive way. You can also include terms about the business relationship- such as cancellation or return policies, which can be helpful to have posted and available online.
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