How to Get The Most Out of Your Website Terms of Service

You’re probably vaguely aware that any time you sign up for a new web account— Facebook, online banking, whatever — you have to agree to the provider’s terms of service. Sometimes you even have to scroll through the entire document before you can complete registration. No one reads the terms of service. Ever. If the Russians want to funnel instructions to their U.S.-based agents detailing how to screw up our next election, hiding them in website use and privacy policies would by the way to do it. The odds of discovery are infinitesimal.

Why has no one ever read a website policy? First, most are so long they must have been written by lawyers being paid by the word. Second, they typically consist of a toxic mixture of legal jargon and technology terminology that, when combined, form the antidote to consciousness. It’s like trying to read the collective works of Shakespeare after chugging an entire bottle of NyQuil. Including the sonnets.

But if you own and are operating a website — passive, active, or otherwise — terms of service are a key component of mitigating risk. Below are suggested practices for using them effectively.

  1. Have them drafted by a lawyer. Website terms of service don’t vary much from site to site which makes it tempting to borrow someone else’s, insert a couple of changes, and pass them off as your own. And you certainly don’t need a lawyer to write them from scratch. But an attorney will make sure that your TOS contain the provisions needed for your business. Good policies mitigate a lot of risks and counsel will be able to identify and address your specific circumstances. You shouldn’t pay a lot for this service but do not do it yourself.
  2. Disclose to your users that the TOS are a binding contract. Make it crystal clear — in big, bold print — that when someone agrees to be bound by the policy, he is entering into a contract with your company. Otherwise, the user could argue that he didn’t knowingly become a party to a formal agreement. From a legal perspective that’s probably a pretty lousy claim, but if you really think attorneys shy away from arguments that are weak or frivolous, you probably need to repeat preschool. On Olyver, we state in big, bold, orange (yes . . . orange) letters: “Please carefully review our Terms of Service. This is a valid legal agreement between you and OliverClarity Inc. By registering, you are agreeing to be bound by all its terms.”
  3. Make each user confirm that he has read and agreed to be bound by the TOS before he can register. You don’t have to make the user scroll through your entire TOS, but you should make him take action right after he’s read about how he’s agreeing to be contractually bound. On Olyver, you click the ‘Register’ button immediately after seeing this disclosure. Terms of Service are contracts of adhesion, which is a legal term for agreements in which one party has little or no bargaining power. (Or is it an agreement that you can stick to your face without using tape? I can never remember.) Anyhow, courts are sometimes supposed to give a little latitude to parties who execute a contract despite having negligible bargaining power, and you don’t want to create the impression that you fooled the user by hiding that whole “you’re signing your life away”part in a bunch of other verbiage.
  4. Add it to the database. If the user can’t sign up until she scrolls past a hard-to-miss disclaimer that she’s entering into a binding agreement, she’ll have a difficult time convincing anyone she was unaware that registering created a contract. But you can make taking that position virtually impossible simply by adding an acknowledgement check-box. Only when the user has checked that box can she click ‘Register’. You can even add the acknowledgement to the database. (Warning: Esoteric coding jargon to follow.) Olyver was coded in Ruby, so in our registration resource, we added a “tos” parameter as a Boolean. When a user checks the box, the database records “true” and associates that piece of information to that user. We now have documented proof that she actively agreed to be bound. If the user doesn’t check the box, she can’t register.
  5. Make Sure They Can Read It Before Registering. You don’t have to force the user to scroll through the TOS, but you must give her an opportunity to read the document. Make sure access to the applicable page is easy. For example, on Olyver, the underlined portion of “please carefully review our Terms of Service” is a link to the policy. We also provide TOS access in the footer on every page, public and private. If the user can’t easily open and read the policy, it’s going to be tough to insist that she comply with those terms.
  6. Review and Update Regularly. Rules, laws, and best practices change. For example, in May of 2018, the European Union’s new data management law, the GDPR, took effect. The legislation fundamentally changes website user rights and adds a host of obligations to service providers. Any company with even tangential business links to the EU (including Great Britain, the Continent’s on-again, off-again significant other) has been required to make major adjustments not only to its TOS but also to its data management protocols. Failure to comply can have serious consequences such as fines, other financial penalties, and, for repeat offenders, the development team being required to repeatedly take long, hot, soapy baths with Boris Johnson. So consult with your attorney periodically to make sure your TOS are updated and compliant . . . or tell the dev team not to forget a rubber ducky.

Olyver (i.e. OliverClarity 2.0) is coming soon! Start a business, get your existing venture organized and compliant, and attract investors from one easy-to-use platform. For more information or an early-access invitation, email help@oliverclarity.com.

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Steven Fried

Steven Fried

CEO and General Counsel of Olyver (a/k/a OliverClarity). Business attorney, consultant, software entrepreneur, and coder.