Five Reasons Not To Copy Someone Else’s Online “Terms of Use”

Frequently, when advising clients who rely heavily on their web sites to generate business, I discover that they have merely plucked the “terms and conditions” or “terms of use” from other web sites, without giving much thought to the consequences of this. This can be a dangerous and costly mistake because these provisions may create contractual obligations. That “Terms of Use” link sitting in the footer of your web site is there for a reason. Do not take it for granted!

Here are five of the top reasons not to clip-copy your Terms of Use (“TOU “) from another web site:

1. One of the most critical provisions in the TOU deals with CONTENT. Increasingly, businesses build web sites with the goal of engaging their customers or users. This creates a two-way relationship, within which your users actually submit information to you. Social media offers the obvious example of this, but e-commerce sites also receive information from their users (whether the users know it or not). Who owns that information when it is submitted (or received by the business)? The TOU usually addresses this issue. Does the user surrender his copyright interest in his pictures when he uploads them or does the user keep it? When you submit a review to a web site or a comment about goods or services, are you giving that web site the right to re-publish your feedback? From copyright to privacy, these issues should be addressed in the TOU and, all too often, when businesses clip-copy their TOUs from other businesses, they fail to include language that addresses this issue.
2. Closely related to this, many TOUs create OBLIGATIONS for you, the web site host. In particular, these obligations pertain to how you will handle user information, from photos to personal information (birth dates, shopping and browsing history, credit card information). As a web site owner, you need to know what these obligations include! Frequently, clients are surprised to learn that by blindly clip-copying someone else’s TOU, they have contractually agreed not to share certain information with third-parties, or not to save certain user information.
3. One of the most standard provisions of any contract, and of most TOUs, is the provision dealing with the law (and the courts) that will govern the interpretation and enforcement of the TOU. Have you looked at your TOU to make sure you are subjecting yourself to the law of your state? Often, clients copy TOUs from other businesses that provide similar services, without giving much thought to the fact that those other businesses may be located in California (when you are in Tennessee). This can create all sorts of critical legal issues and costly litigation expenses.
4. What about confidentiality? Many clients share customer browsing data with third-party marketers. Are you allowed to do this under your TOU? Do you promise your users that you will keep all of their information, transmitted intentionally or not, private? If you do, and you’re sharing it, you may be violating your own TOU!
5. What about the quality of your services? Are you, unintentionally, making warranties about whether your goods or services will perform at a certain level (because you have copied the TOU from another web site)? Or, alternatively, does your TOU expressly tell your users that you are NOT RESPONSIBLE for the quality of your goods and services? Do the promises in your TOU conflict with your customer contracts? Remember, the TOU is a contract too and can be enforced by the users of your web site! If your TOU says you are providing goods and services on an “as-is” basis, but your actual contract for those goods and services creates an express warranty, which controls? When you clip-copy the TOU from another web site, you may be creating more trouble for yourself than you can imagine.

These are just a few very good reasons you should talk with a lawyer before you publish the Terms of Use (and Privacy) language to your web site.

Click here to contact Darrell Phillips for more information about drafting or reviewing your Terms of Use.