What Makes a Solid Terms Agreement?

If you are building or planning to build a website – it is a good idea to implement a Terms of Service.

What is a Terms of Service?

A terms of service, terms and conditions, terms of use, etc; are all agreement policies between users and the website.

Terms agreements can be used for any type of services. However this article will focus on terms agreements for websites.

These agreements, if implemented properly, are legally binding. This means if either the website or user violates the agreement they may become void. In some cases violation of these agreements can lead to legally issues between both parties.

What Makes Up a Terms Agreement?

For websites there are some core elements all terms agreements should contain.

The Service

First and foremost, what is the service they are agreeing to. Use of the website, reading blog posts, using an app? These are all important questions to answer in your agreement.

Many websites will make a broad description of their services to anything available from their domain. If you have specific services external to your website make sure to describe them.

Limiting Liability

Another core goal of any terms agreement is to limit potential liability. A general rule of thumb for limitations is to be as fair as possible – while giving yourself the necessary protections.

There are no perfect ways to accomplish fairness for all, but some good ideas are as follows:

  • Accept some form of liabilities for paid services
  • Limit the amount of liability, but do not neglect it entirely
  • Be transparent about liability
  • Make your policy easy to understand

Policy Modifications

Inevitably you will need to make some changes to your policy. Perhaps just to update some wording for clarity, or for some serious changes.

Read more about policy modifications here.

Regardless of the reason, you should have it in your policy an outline of how you will proceed with making said changes.

Some questions to answer in this clause are:

  • If and how you will notify your users
  • How will you outline your changes
  • How long will this notice be

Governing Law

If a legal matter does come up, make it clear where it will be settled. Common practice is to make your local governing entity, such as your state or nation. This will deter people from pursuing meaningless legal cases from far away.

Making the Agreement

You can have the best Terms policy ever written, but it is completely meaningless unless your users agree to it.

Currently there are right ways and wrong ways to accomplish this.

Wrong Way

Posting a notice in your footer “by accessing this website you agree to this website’s terms of service. This is wrong for a couple reasons.

  1. How can you prove a user even saw this notice?
  2. Does accessing a website also give consent to a legal document – short answer, probably not.

Better Way

Having a click through event recording consent of the document. Legally this has been a tried and tested method of forming a legal agreement.

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