Terms of Service and Why your website needs them

Terms of Service: Why are they important to have on your website

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Terms of service, also called acceptable use policies, are the Internet equivalent of the fine print, the document that dictates the conditions that apply in order for an individual to use a website or a network.

When was the last time you read the terms of service for any of the websites or networks you join? Perhaps that question should be rephrased: have you ever read the terms of service for any of the websites or networks you join? It's so much easier to avoid the onslaught of verbiage, densely populated with legal terms and semi-colons; to cut to the chase and just click on that little box besides the words, "I agree."

But by clicking on that little box, you may be binding yourself to a legally enforceable contract, particularly in those cases where the terms of service are plainly offered for your review. When the plaintiff in the 2008 case Feldman v. Google Inc alleged that at least 20% of the clicks for the keywords he purchased using Google's AdWords program were fraudulent, the defendant countered by pointing to Google's terms of service: in order to activate the service, the defendant had to accept these terms by clicking in a box alongside the words, "Yes, I agree to the above terms and conditions." The United States District Court of the Eastern District of Pennsylvania found for the defendant.

Of particular interest in this case is the fact that the court did not require the defendant to have read the terms of service, only that he be given notice that they existed and an opportunity to review them.

From an end user's point of view, then, it is always a good idea to familiarize oneself with acceptable use policies, particularly when participating in an online service like eBay or PayPal where financial transactions routinely occur.

But terms of service are equally critical from a website owner's or service provider's perspective: they define guidelines for prospective users' normative use, expected standards of behavior and the penalties users may face for violating acceptable use. It is always a sound business practice to limit assumption. Terms of service can cover a wide variety of issues including online privacy, copyright policies, safety and account security, interactions with other users, portage to mobile platforms, payment terms, developer provisions, provisions pertaining to international users, advertising protocols, dispute resolution and grounds for termination of services.

It's a good idea for anyone setting up a website to include an acceptable use policy. But it's absolutely essential for any businessperson who is considering launching an ecommerce site. Although it may be tempting under these circumstances to log onto one's favorite site, "borrow" their terms of service and do a little creative tweaking before publishing them as your own, this is never a good idea. For one thing those terms of service are an original work protected under copyright, and it's copyright infringement to reproduce or make into a derivative work copyrighted words without the express permission of the copyright holder. For another, your website is a unique entity with its own unique set of circumstances and requirements: someone else's terms of service are likely to leave out some of the essential areas where you need to set ground rules. If you are a businessperson thinking of setting up a website, you would be well advised to consult with an experienced Internet attorney about drafting a personalized acceptable use policy.

Terms of Service and Why your website needs them

By: Ken Phelps

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