These rules are created and enforced by the company behind the website or app, and users must agree to them before using the site or app, when creating an account, making a purchase or subscribing to a service. By agreeing to these terms, your users are essentially entering into a contract with you and agreeing to act according to your policies.
While the average user probably doesn't spend much time reading Terms of Service pages, they serve an important purpose.
Terms of Service are not required by law like Privacy Policies are, but you'll still want to have one for your own benefit and for your customers. The reason virtually all large websites have a Terms of Service page is not because they have to, but because it's the smart thing to do.
A good way to get started creating a Terms of Service agreement for your app or website is to look at the agreements for similar apps and websites. For example, if you want to create a Terms of Service page for your ecommerce website, take a look at other ecommerce websites such as Amazon and see what information it includes in its Terms of Service.
Let's take a look at some of the standard information included in a Terms of Service.
This simple but important piece of information should be one of the first statements in your Terms of Service agreement. While many apps and websites are suitable for anyone and everyone, the ones that are not are usually that way for a very good reason.
Common reasons to limit who can use your services are age restrictions and limiting access to certain geographical areas.
Age restrictions are common where adult supervision is desired such as when making purchases or interacting with other users. Age restriction is also important to keep minors from accessing adult content.
Geographic restrictions can exist when a product or service is only intended for users within a certain country, for example.
Another common reason for geographic restrictions within a Terms of Service agreement is for legal reasons. For example, if a certain website is intended only for users within the United States, the Terms of Service may limit who can use the service to only residents of the US. One reason for this could be that the website is not compliant with the GDPR, so users in the EU are restricted from using the service.
Here's an example of a very short and to the point clause from Ethicon that makes it clear that the website is only intended for U.S. residents who are 18 or older:
Here's an example of a more complex and detailed clause from DigitalOcean that outlines age restrictions and notes that the service can't be used to benefit third parties.
Every Terms & Conditions page should include a section on restricted use. Essentially, this section would cover forbidden user actions that go against the intent of the app or website.
For example, in Spotify's Terms & Conditions users are forbidden from making illegal copies or recordings of music, circumventing regional licensing restrictions, or sharing accounts with other users.
Restricting user activity in your Terms & Conditions protects and indemnifies you from unlawful or undesirable use of your app or website.
Your restrictions can be as company-specific as Spotify's, and can also include general restrictions like no spamming, no harassing other users and no using profanity.
For apps and websites that host user-generated content, regulating this content in your Terms of Service agreement is crucial.
Usually clauses regarding user-generated content do two things:
Not allowing copyrighted material to be used protects the host from copyright infringement penalties and gives the owner the right to remove such content.
Here's an example from Facebook that discloses what can be shared, what can't be shared, actions Facebook can take in response, and actions other users can take if they suspect violations of the terms:
While the app or website can attempt to screen or disallow offensive content from being shared on their platform, creative users often find a way around these defenses and share content that is offensive to others. Disclosing that this is a possibility to your users reduces your liability in the event that a user posts offensive content that is not immediately noticed and removed. This also gives you the right to remove offending users.
A termination clause states when a user's account may be terminated and what happens when it is.
For example, Facebook states that they have the right to terminate a user account if that user has violated their terms. It also explains that users have the right to terminate their own accounts and directs them to more information about what happens to the account information in that event.
If your website or app has an ecommerce component or offers paid services or subscriptions, you're going to want to clearly lay out any payment, billing and shipping terms.
This will help keep your users informed and manage their expectations, as well as limit your liability in the event of unsatisfied or unreasonable customers.
Information about billing cycles, taxes, shipping and handling times and out-of-country buyers are just a few examples of what should be included in this clause.
For example, estimated shipping times are often included on Terms of Service pages, with the addition of a disclaimer that these times are estimates and not guarantees. By having customers agree to these terms before making a purchase, they have no grounds to complain about shipping times within your window.
If your terms state that shipping and handling will take 1-2 weeks, and you receive an email from a customer complaining that they have not received their order after 5 days, you can simply refer them to your Terms of Service page where it states that shipping will take 1-2 weeks. If they agreed to these terms, they can't very well complain that their order didn't arrive early.
Even if a customer's order has not arrived after 2 weeks, if they agreed to your Terms of Service which states that the 1-2 week estimate is not a guarantee, you can refer them to that portion of the agreement. Without having this disclaimer in your Terms of Service (or without having your users agree to a Terms of Service at all), you are more likely to run into difficult customers who will demand a refund if their order has not arrived as quickly as they would have liked.
But if you had them agree to a Terms of Service that spells all of this out, it becomes difficult for them to complain about a timeframe that they agreed to at the time of purchase.
Here's an example from Netflix that discusses details of membership including information about canceling, and a disclaimer that Netflix isn't responsible for products and services provided by any third parties:
Freelin Wade goes as far as including a Shipping Terms of Service section that's placed directly before its entire Terms of Service agreement. This is because the company ships a lot of products to businesses and distributors, so shipping terms are one of the most important aspects of its Terms of Service agreement.
Retailer IKEA's Terms of Service has been organized to include a Delivery section that lists out commonly asked questions to help users find answers and information quickly:
There are a variety of different formats that you can use to disclose your payment, billing and shipping information. Start by coming up with a list of questions your shoppers would be likely to ask and make sure you answer them somewhere in your Terms of Service agreement.
A standard clause you've likely seen plenty of times before in Terms of Service agreements is one that disclaims warranties and limits liabilities. This section is often written in thick legalese and mentions things like viruses, harm to your computer, the possibility for inaccurate information to be presented on the website and that all products and services are made available "as is."
This clause can help reduce your liability for things that could possibly happen outside of your control and in some way negatively impact your users.
Here's a clause from Amazon that covers everything from information and content to products.
These clauses will almost always be written in all capital letters, and will use the phrase "to the full extent permissible by law" when disclaiming warranties.
This section of your Terms of Service should spell out which components of your website are your intellectual property. By disclosing your intellectual property, trademarks, and copyrighted information in your Terms of Service you can strengthen your case in the event that users misuse your intellectual property and you need to take legal action.
Here's an example of a clause from Nike that makes it clear the company owns things like photos, graphics, designs and general artwork. It also includes things like scripts, code and software that it wants to protect as its own.
Use this section to notify your users about what parts of your app or website are proprietary and off-limits for use elsewhere without your consent.
This clause is also known as a "choice of law" clause and declares which laws the agreement will be governed by. For example, a company based out of New York City can declare that the laws of New York will apply to the agreement and any disputes arising from it.
These clauses are important so that your customers can't sue you in faraway places where they may live but where you have no actual connections aside from that customer.
Below is an example from Facebook's Terms of Service:
If there is a chance that your Terms of Service will change or grow in the future, you should include a short clause that simply states that your terms may change at any time and describe how or if you will notify your users.
Here's an example of a standard clause from Amazon that "reserves the right" to make changes to the terms at any time.
Essentially, this clause gives you the right to change your Terms of Service without complaints or liability issues from users who dislike or are unaware of those changes.
The examples above represent some of the most common and widely used clauses in Terms of Service agreements. However, every Terms of Service agreement is different as the needs of every app and website owner are different and the nature of every online business is unique.
Depending on the type of app or website you manage and the services you offer, your Terms of Service agreement will change to reflect that. A good exercise is to look at the Terms of Service agreements for apps and websites similar to your own and see if there are any clauses that you may be missing.
If there are any disclosures or rules that you think would benefit your app or website, it is better to include them now than wish you had later on when you are facing a frivolous lawsuit from an uncooperative user.
Once you have your Terms of Service created, it's important that you make it available to your users. There are a few different places where this can and should be done:
Terms of Service pages are almost always made accessible from the footer of any page on a website. This ensures that users can easily access your agreement at any time, and this is where most people who look.
This is a familiar sight for all of us:
Account creation is one of the best times to have users agree to your Terms of Service for a number of reasons.
The first and most obvious reason is that they are preparing to use your app or website for the first time, or at least committing to become a regular visitor. What better time to have them read your rules of conduct and other terms?
Requiring new users to agree to your Terms of Service during account creation gives you the ability to hold all of your users to those terms. If someone does something that is not compliant with your Terms of Service, you have proof that they agreed not to do that when they became a member. This gives you grounds to ban, remove, suspend, flag, or otherwise reprimand that user. In this manner you can ensure that all of your users are behaving properly when using your app or website.
By having your users agree to your Terms of Service upon account creation, there is no excuse for breaking the rules.
Checkout is another crucial point of interaction where it is important to have users agree to your Terms of Service. This is especially true if said users have not already created an account and agreed to your terms there.
Here's a general example provided by Shopify:
The reason why it is important to have users agree to your Terms of Service at checkout is they are entering into a financial contract with you that may be affected by your Terms of Service. They not only have a right to know about any disclosures or other information provided in your Terms of Service document, but it is also important for your sake to have them agree to your terms of the sale before completing their transaction.
If your app or website hosts user-generated content you probably have rules in place for what this can include. You might limit copyrighted material, adult content, or offensive language.
Having users agree to your Terms of Service before submitting user-generated content ensures that they are aware of what is and is not allowed and the consequences for breaking the rules.
This is a great way to manage what users submit and remove any users who submit content that is not inline with your policies.
Similar to during checkout, having users agree to your Terms of Service when signing up for a subscription is necessary to avoid disputes down the road. Including information about payment, billing cycles, and cancellation at the very least can help you avoid headaches from difficult customers down the road.
You should require all users to agree to your Terms of Service when signing up for a subscription so that they know what to expect moving forward.
While the above examples showcase the big moments when users should be agreeing to your Terms of Service, there may be other scenarios when it makes sense for your app or website.
Whenever users are providing a large amount of personal information, exchanging money or goods, or entering into a contract where they promise to do something, having these arrangements backed up by a Terms of Service is wise to protect yourself and inform your users.
Any interaction where either party is expected to do something is an opportune time to back up that obligation with a binding Terms of Service agreement.
You are probably used to checking boxes that say "I agree to the Terms of Service" when creating an account for pretty much anything online these days. These agreements are used by companies big and small to ensure that users are aware of their policies.
While most of us don't bother to actually read the Terms of Service, we still agree to abide by the rules therein. Most Terms of Service pages are full of a lot of similar clauses and rules, but it is important to have your users agree to your terms when using your services.
We discussed above at what points it is a good idea to ask for users to agree to your terms, but what is the best way to get users to agree?
Checkboxes are the tried-and-true method relied on by most organizations. These checkboxes should not be checked by default, requiring users to check them before proceeding.
By having users check an unchecked box that reads "I agree to the Terms of Service" there is very clear, affirmative consent. It is usually a good idea to link to your Terms of Service page right in that line of text so users can easily access the document that they are agreeing to.
Here's an example from Furniture Cart:
This method works well with mobile apps where you can have a user tap a checkbox to show they agree to your terms. Here's an example from the Hiya mobile app:
While a Terms of Service agreement is not a legal requirement, it helps your customers and users understand your rules, requirements and restrictions. It also helps you enforce these stipulations and maintain control over your website or app.
Make sure to include all the relevant and important clauses and information and display your Terms of Service appropriately. Always get your users to agree to your terms by using a checkbox when asking for agreement.