If you have a business you almost certainly have a website. And if you’re a Seattle business, odds are you have sweeping views of the Space Needle and Mount Rainier splashed across your homepage.
But what legal-related content do you have for your website? And what type of this content do you need to have?
Terms of use - the topic of this post - is one of several consumer-facing legal documents you need for your website (as I explained in this article), whether you’re an e-commerce, e-tail, or brick-and-mortar business.
Related: 9 Contracts Your Business Should (But May Not) Have.
What Are Terms of Use?
The terms of use function like a contract between you, the owner of the website, and each person who uses your website. In essence, they set out the rules for how your website can be used by others.
Why You Need Terms of Use
By establishing the rules of your website, you protect yourself from the consequences of bad behavior by others, including users recreating your content without permission, uploading illegal or defamatory content to your site, and more. This is particularly important for websites with interactive features or that allow users to post their own content, like in a comment, or through social media.
Where To Get Terms of Use
You may be tempted to copy and paste the terms of use from another company’s website. But doing so is risky. While some terms of use provisions are fairly standard, others are industry-specific, often due to how certain industries are regulated or because of exposure to unusual types of liability based on what a particular company sells. If you cherry-pick terms from someone else’s site, you’re assuming that the risks they face are identical to the risks you face—which is often not the case. In short, it’s wise to have customized terms of use for your website prepared by a lawyer familiar with your industry and business.
How To Make Sure The Terms of Use Are Enforceable
Regardless of where you get your terms of use from, you must ensure they’re implemented correctly. Remember, the terms of use function as a contract between the site owner and users and, like any valid contract, it must be enforceable. This presents special difficulties in the online setting because, in the interest of effective design, your user can’t be presented with a document that says “CONTRACT” at the top of the page in all-caps. Yet the user must still be given notice of the terms of use and agree to them.
There are several approaches typically used for giving notice of the terms and obtaining assent from the user. The first is known colloquially as “clickwrap” and the second as “browsewrap.”
The Clickwrap Method
Most everyone is familiar with the clickwrap method, which requires a user to click on an “I Accept” button or check a box confirming they’ve read and agree to accept the terms of use. This is an effective way to establish an enforceable contract between owner and user, which courts will usually uphold if challenged.
Tip: It’s often a good idea to use clickwrap before allowing users to purchase something from your site, submit content through social media, or otherwise interact with your site.
The Browsewrap Method
Browsewrap, on the other hand, simply posts a link to the terms of use on the homepage or elsewhere on the website. There’s no requirement that the user take action (e.g., by clicking a button or selecting a box). While this method is less obtrusive, it is also less commonly upheld by courts when challenged, and so is a riskier proposition than clickwrap.
Tip: If users of your site can purchase items, post content, or otherwise interact with your site, it’s usually better to use the clickwrap method rather than relying on browsewrap.
Takeaways
Getting terms of use in place for your website is probably at the bottom of your list of things to do if you’re starting a business. But it shouldn’t be, especially for e-commerce businesses that plan to sell through their website. By establishing the rules of your website, you protect yourself from the consequences of bad behavior by others, while notifying users what terms they’ll be subject to.
