Are You Being Protected by Your Website's Terms of Use?

online presence Apr 08, 2021

What is Your Website's "Terms of Use" or "Terms and Conditions"?

At Functional Lawyer today, we're talking about your website. Your website is the first thing most people will see when they come across you on the Internet, so it's important that you use it to protect yourself. More specifically, we're talking about why you need a website Terms of Use / Terms of Service / Terms and Conditions. (These titles are used interchangeably.) Our discussion will cover five reasons why you need Terms and Conditions, and our conversation will essentially boil down to the importance of protecting yourself, what exactly should be in your Terms and Conditions, and how to set a Terms and Conditions on your website.

To start, what is a Terms of Use / Terms of Service / Terms and Conditions? (I usually call them "Terms and Conditions" and will use this phrasing for the rest of the discussion.) It's an agreement that a website user who goes to your website must agree to in order to access your website and any services or amenities that you provide. You've probably seen it a bunch of times on people's footers, and these terms are usually accompanied by another link to the website's Privacy Policy, which we have another video and blog about at Functional Lawyer if you are interested. While the two are related, Terms and Conditions serve as an actual agreement between the website user and the website creator over the liability and rules of using the website.

Five Key Reasons You Need a Terms and Conditions

Reason one: you can mitigate liability for your website. You can put in some limitations of liability and some disclaimers about using your website.

Reason two: you can define the permitted conduct allowed on your website. For example, are people allowed to comment under blog posts? Is there a message board forum? What happens there? What can they do with your intellectual property? Can they use your photos? Text? Copy? Essentially, your Terms are a place for you to limit people from stealing your stuff.

Reason three: you can set up an indemnification process for your website. If another user posts something on your website that infringes upon a third-party's rights, you would be protected if this is clear in your Terms and Conditions. Let's say there's a comment section on your website, and one of your users steals somebody else's video or words and posts them to your website; then, a copyright owner or the owner of those intellectual property rights tries to sue you. In this situation, if you have an indemnification clause in your website's Terms and Conditions, you will be protected, and whoever posted it will have to pay you back. Oftentimes, you'll just dismiss the case if there's an indemnification agreement, and then they can sue that third party. You can further protect yourself if you just have a good Digital Millennium Copyright Act section in your Terms and Conditions. This is more specifically about how to handle complaints if you as the intellectual property owner finds your material on another website. You can then contact that website owner and have your intellectual property taken down, and visa versa.

Reason four: you can implement a limitation or exclusion of liability, particularly if you are linking out to third-party sites. For example, if you say, "Hey, here's a cool resource that you can check out!" and then go link that third-party site, you can limit any responsibility so that you're not liable for whatever happens on that third-party site. So, if one of your visitors gets a virus or anything happens on a third-party website, that's between those two people, not you.

Reason five: you can incorporate an arbitration clause to determine where any disputes are handled. This allows you to dictate when and where any disputes are brought, and how they go about being settled.

What Should be in Your Terms and Conditions?

To be insulated from liability, you will need to include a variety of elements in your Terms and Conditions. The following are some examples of important components of your Terms and what you need to state.

• Tell the website visitor that by simply using the website, they accept the Terms and Conditions. This acceptance of terms explains that they are getting a limited license to use the website.
• Indicate any cookies that you are collecting and how they will help provide better service to your users.
• Your Terms should also include an Acceptable Use Policy, stipulating constraints and practices that a user must agree to for access to a corporate network or the Internet.
• For international use and compliance, your Terms should be accessible in multiple languages.
• Note that there are also some federal laws about websites that are designed for children under 13, so you'll want to say that you're not designed for children under 13 in most cases.
• Additionally, you will need to state your Digital Millennium Copyright Act provisions.
• You also want to talk about user accounts-- if you have logins or sign ins, how they are handled, and any payment provisions.
• Privacy, as we mentioned, is sometimes contained in the Terms, but usually there's a whole separate section for that.
• Who owns the website should also be included and how users can reach the owner or operator if there are any issues.
• You definitely want to put some disclaimers in your Terms as well.

Where do You Get a Terms and Conditions for Your Website?

You may now be wondering where to access a Terms and Conditions for your website. The good news is that we have one at Functional Lawyer that is designed for you to edit to suit to your own practice's needs! You can download it, and it comes in Microsoft Office / Microsoft Word format. It also comes with a video tutorial on how to edit some of the sections if they don't apply to you, or, if they do. But, you should always check with your localities as well and have these things reviewed by local attorneys who know your specific situation.

In Conclusion...

So, that's website Terms of Use or Terms and Conditions! You should definitely have it because it limits your liability in five key ways, as previously mentioned. And don't forget to add provisions in your Terms that make sense for your business. Don't just go out and copy and paste from Google or Apple or somebody else; they're going to have a lot of different Terms of Use that don't apply to you as a medical professional, as many are running just a very basic website. So, definitely don't steal it, but know that it's going to help you. You will sleep better at night having the protection. Also, if you're having a cyber insurance policy for your business, they're going to insist that you have a Terms and Conditions and will want to review that policy and your whole website as well.
In the end, your Terms and Conditions will keep your website safe and make sure that you don't put yourself in needless places of risk or liability.

Thank you so much, and I hope this was helpful information as you grow your website and business. Don't forget to follow us over at Functional Lawyer, and we'll see you in the next blog and video.


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