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The Do’s and Don’ts of Website Tou’s

Jeff Coppaken Sept. 6, 2018

Your business idea has come to fruition. You are ready to dive in to your adventure and need assistance creating your Terms of Use (TOU) for your website or online platform. These terms are guidelines that detail out the terms and conditions that will protect you, your business and make sure that those utilizing your services or products know the rules. Failure to abide by these documents can expose companies to fines and costly litigation.

I create business contracts and terms such as these on a daily basis. In my time as a Business Attorney in Kansas City, I have developed what I consider, “Do’s and Don’ts” in establishing best legal practices.

When it comes to contract law, one template does not fit all. A DON’T, in my opinion, one should never utilize a template taken from any provider who is not aware of the specifics of your business. It is critical that your terms are outlined considering your unique services. These terms and conditions are what protect your business if something goes wrong.

Secondly, your Terms of Use need to be enforceable. Simply telling your consumers what your terms and conditions are is not enough to make them enforceable.

DO make them enforceable by following four basic requirements;

  1. Adequate notice of the existence of the proposed terms

  2. Meaningful opportunity to review the terms

  3. Adequate notice that taking a specified action manifest assent to the terms

  4. Action specified in such notice is taken by the user

It is of importance, especially if you have service sign-up, subscription, or registrations to make sure the user expressly consents to the TOU. Additionally, I find and recommend that you DON’T bury your links to your Terms of Use or privacy policy at a location that is difficult for the user to find.

DON’T combine your Privacy Policy with your TOU. This is a common mistake I have come across in my time practicing business law. If you combine these two documents, they become hard to read. Most TOUs reference the privacy policies and by keeping them separate you eliminate the need to notify users of changes to both documents if they occur.

In regard to the TOU and other agreements, DO make sure that the two do not conflict. Often times many companies, especially those in the Software as a Service (SAAS) space have paper contracts with their clients or vendors. These agreements require the other party to comply with both the agreement and the TOU. It is not uncommon for terms that conflict or overlap between documents. Do make sure to make clear which documents or terms take precedence.

Lastly, DO protect your content. Most online services involve some sort of content including news, articles or some form of information. If you own content, put limits on how you want it used. If you allow others to post content it is in your best interest to have a Code of Conduct.

Small businesses need to consider the value of having an effective Privacy Policy and TOU. As a business attorney, I have seen businesses in Kansas City experience costly legal ramifications due to mistakes made in these documents. If you would like assistance developing a Terms of Use, Privacy Policy or other Terms of Service or advice on editing your current one, please contact Jeff Coppaken with the Coppaken Law Firm.

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