Do You Really Need to Include a Website Terms of Use Policy? Five Basics Terms Every Website Owner Should Consider

Published 13 October 2017

Businesses of all sizes can afford to launch websites, especially since the introduction of online website templates. Ready made websites provide simple, inexpensive access for almost any price point. As innovation continues to expand the ways in which we interact through websites, business owners must determine whether to implement additional rules for website use. The answer depends upon how much interaction is made available to the user through the website.

What is a Website Terms of Use Policy?

The terms of use are the rules that someone who accesses the website online must follow. A terms of use policy notifies users of the website what they are allowed to do on the website and what users can expect from the website’s owner. From the owner’s perspective, the terms of use also disclaim liability by providing the user a list of things for which the owner will not be responsible. The following provides an introductory explanation of the terms of use policy to a website’s users:

Thank you for visiting Company’s website. Company has set up the following rules to ensure that Company keeps this website useful and safe for you, the user. Company reserves the right to change these rules and disclaimers at any time, and by accessing the website you agree that each visit you make to the website shall be subject to the current guidelines.

What should be Included in a Basic Terms of Use Agreement?  

The answer depends upon what the website does and how the user interacts with the site. Simple websites may never include terms of use, and never experience a problem for the life of the business. However, the following issues are generally appropriate for most simple websites:

  1. Provide Notice of Ownership of your Intellectual Property: Website owners need to protect their intellectual property such as logos, website design, and content. Providing notice to users that the material may not be used without the owner’s express written permission is an important step in protecting the website content. The following is an example of a simple notice of ownership term: 

All material published on our website is either protected by our copyrights or trademarks or those of the people or organizations who create that material. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works of, distribute, publicly perform, publicly display or in any way exploit any of the materials or content on our Web site in whole or in part without our express written permission.

  1. Disclaim Liability for Errors in Website Content: Sometimes information changes faster than an owner is capable of updating the website. If the website is not updated, and a user acts on incorrect information found on the owner’s website, the user may attempt to make a claim against the owner. 

The information published on this website was valid when published. Owner reserves the right to make changes to content and functions at any time without notice, and Owner assumes no liability for damages incurred as a result of errors, omissions or discrepancies.

  1. Disclaim Liability Glitches, Searches and Downtime: Many factors beyond the owner’s control may affect accessibility to the website, search results and load time. Technology is imperfect and the owner should disclaim liability. Below we have included one example of a disclaimer: 

Owner disclaims all liability, damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of or use of record arising from, related to or connected with accessing or use of the website, whether such claim is for breach of contract, tortious behavior, negligence, or under any other cause of action.

  1. Explain what the Business will do with Information Provided by the User: Explaining to the user what the owner will do with any information provided by the user is called a privacy policy. On a simple website, the owner sometimes provides users a method to provide user information for ease of contact with the business (to request that the business owner reach out, provide information in the future or respond to a question). A simple privacy policy explains that the user’s information will be used for that purpose and no other. The following is an example of a simple privacy policy: 

When accessing our website, Company will learn certain information about you. If you visit our site to read or download information on our pages, we collect and store only the following information about you:

1. The name of the domain from which you access the Internet;

2. The date and time you access our site; and

3. The Internet address of the Web site you used to link directly to our site.

If you send us an e-mail containing personal information, then the information collected will be used solely to respond to your message. Please note that e-mail communication on the Internet may NOT be secure. The transmission of an e-mail request for information does not create a business relationship or obligation to respond. If you provide personally identifying information, Company shall not sell or otherwise transfer such information to unaffiliated third parties without your express approval at the time of collection.

  1. Identify the Law that Governs the Website: Since different states and countries obviously have different laws, website owners want to identify to the user the laws that set of laws that govern the website. The following is an example:

This website is created and controlled by Owner in the State of Florida. As such, the laws of the State of Florida will govern these Terms and Conditions of Use, without giving effect to any principles of conflicts of laws. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts in Florida in ______ County, Florida for any litigation arising out of or relating to use of this website (and agree not to commence any related litigation except in such courts), waive any objection to venue of any litigation in the above courts, and agree not to plead that litigation before the above courts has been brought in an inconvenient forum.

When Should the Terms of Use Agreement Contain More than the Basic Information?

The more complex the interaction between user and website the greater the likelihood that additional terms and conditions would provide the owner more protection. Good examples include websites that provide online transactions in the lending, banking and securities markets. Websites that provide “adult” products such as online gaming, adult content, sale of alcohol, weapons, chemicals, ingestible cannabis products or tobacco definitely require something more than basic terms and conditions of use.

Websites that promote discourse, commenting or posting of user content also require a more robust terms of use policy. Likewise, websites that provide portals allowing users to upload personal, financial, medical or other sensitive data, require policies that specifically address the different requirements for keeping such information safe. Where a website invites the user to provide information best practices, and sometimes the law, requires that website operators specify what they will do with the user’s information.  

Businesses that provide or are considering providing any of the following services online require a detailed terms of use policy specific to the service:

  • Upload or download of data or information;

  • Purchase and sale or brokering of anything;

  • Collecting or storing user information;

  • Membership, registration, sign-up or opt-in to anything;

  • Online donations or other non-purchase collection or exchange of funds;

  • Email business owner;

  • Internet search engine; or

  • Message boards, blogs, chat rooms, comment sections and other electronic communication platforms.

Does the Law Require Websites to Provide Access to Disabled Users?

Under certain circumstances, business owners are required to provide disabled users access to the company website. In a recent case, a Florida Federal Court held that a national grocery store chain violated the law because its website was “heavily integrated” with and provided a gateway to the chain’s physical store locations, but was not accessible by a blind man who attempted to use the website. The take away is that when a company website is connected with provision of services to the public at a physical company storefront location, the company risks violating the law by failing to provide disabled users equal online access to the gateway services on its website.

Examples for guidance from the recent case provide that the grocery chain’s website was not compatible with special software that allowed blind users to navigate and access the information or “gateway” services on the chain’s website. For example, blind users could not access digital coupons from the website that automatically linked to their grocery card for scanning and presentation at checkout in the physical location. In addition, without access to the chain’s online pharmacy system blind users were forced to explain what prescriptions they needed but could not see who else might be listening (a potential violation of medical information protection laws). The key is whether a website provides a gateway to services at the physical store that a disabled person cannot access or utilize, and an easy and inexpensive fix exists.  

Most businesses launch some a website in some form, and uploading a terms of use policy is always a good idea to help protect your business. If your website provides gateway services to an actual storefront location, or if you are considering adding online services through your website that increase the complexity of interaction with your website users, we recommend that you work with experienced counsel to ensure your website terms of use policy is updated.

Bruce Loren, Esq. and Michael St. Jacques, Esq. of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale, Florida. Among other areas, Mr. St. Jacques focuses on Internet and Marketing Law and the issues that surround those unique practices. Mr. Loren and Mr. St. Jacques can be reached at bloren@lorenkeanlaw.com and mstjacques@lorenkeanlaw.com or by phone at 561-615-5701.