Three things to watch out for with your Terms of Service

The Terms of Service for a website can be a complicated document. It is a contractual agreement between the website operator and the end user that governs the user’s activities on the site. Depending on what your site does, it can seem like an infinite scroll of text to some users. However, just because the Terms of Service is boring doesn’t mean that it is not worthwhile to do. Anything worth doing is worth doing right, so here are three things that every website designer/operator should keep in mind when posting a Terms of Service.

#1 – Keep it conspicuous

A Terms of Service is what’s known in the contract world as an “adhesion contract.” This means that it is essentially one-sided; the user has no power to change or negotiate. It’s a “take it or leave it” situation. Because of this, a site owner has to be extra careful to make sure that the user has conspicuous access to the document.

In a perfect world (for attorneys, anyway), any new user that enters the site would be greeted by a full screen version of the Terms of Service. This is the ultimate in conspicuousness. However, in the real world this would only prompt a user to close the tab immediately. A delicate balance between conspicuousness and usability must be met. Simply posting a link to the Terms of Service at the bottom of the page is probably not enough. Generally, there should be something to call the user’s attention to the Terms of Service before the user does anything of substance on the site.

#2 – Get the proper acceptance

Now that the user has SEEN the Terms of Service, they must agree to it. Again, in a perfect world, the user would be faced with the contract, and be forced to scroll down the entire agreement before clicking an “accept” button to ensure acceptance. The site operator would then need a system in place to keep track of the user’s acceptance in order to later prove that the contract is valid.

In lieu of the above scenario, it is possible to have a link to the Terms of Service instead of facing the user with the entire text. This would be followed by a button that signals the user’s acceptance. Some sites prefer to simply state that “continued use of the site signifies acceptance of the Terms,” or something of that nature. I, personally, would probably not counsel a client to skip the affirmative act of clicking the button, though. The more passive we get here, the less it looks like there was a contractual agreement in place, even though the user continues to use the site.

#3 – Make it readable

There is a real debate going on in the legal world about the readability of contracts. Attorneys love their legalese, and all of us are probably guilty of using too many “heretofore”s and “therewith”s in our document drafting.

However, if a user doesn’t understand or doesn’t want to read the document they are agreeing with, what is the point of it? I believe that a document can retain its legal standing while not being completely byzantine in its language. Again, there is a delicate balance here, but it is important that we get it right.

Hopefully this post was somewhat enlightening about some of the requirements for website agreements. Future posts will look at the clauses that should go into a Terms of Service. For now, if you are starting a site or are looking to get a check-up on an existing site, contact your favorite attorney (who may or may not be doing a special right now on just such a thing).