A website’s terms of service sometimes also referred to as website conditions of use (or “TOS” for short) is a legally binding agreement between website users and the website creator designed to limit the website creator’s liability that can arise from users who access their site. This blog post will describe some of the main considerations that should go into your terms of service and how to properly implement your TOS to increase the chance that the terms will be legally enforceable.
Formation of a Legally Enforceable Terms of Service
Canadian courts have generally found that TOS are a form of legally enforceable contract between website users and the operator. However, there are different ways of implementing TOS, and to increase the likelihood your TOS will be enforceable you should ensure two things: (1) that website users have actual notice of the TOS and (2) that website users have explicitly accepted the TOS.
Similar to traditional contracts, users should have knowledge of the terms of the agreement prior to accepting them, particularly if you are dealing with consumers as opposed to other businesses. Hiding lengthy and onerous TOS on a website link at the bottom of your site can raise issues with enforceability. Particularly with consumer transactions, enforceability can be increased by clearly presenting the terms and having the users take some active step to agree to be bound by them (such as a pop-up window containing the terms that users must click yes to accept to continue to use the site). Even with so-called “clickwrap agreements” (long policies where users simply click accept without having actually read the terms) explicitly drawing the user’s attention to the terms and having them take some active step to indicate that they have had an opportunity to read and agree to be bound by the terms will help increase enforceability regardless of whether they have actually read the TOS.
Modifications to the Terms and Conditions
As time goes on your business may (and usually does) take on a very different shape than what you initially imagined. As you venture into different products and services (or even industries) you will want the ability to revise and update the TOS and have those changes become binding on users effective immediately. Similar to the problems with the notice above, your TOS should have clear contractual terms outlining that you can make amendments to the TOS, that users have the responsibility to periodically review the TOS, and how users are to be provided with notice of any amendments. When the time comes to revise or update the TOS you should ensure you abide by those provisions (such as emailing subscribers or posting the amendments prominently on the site). In doing so you increase the chances that your amendments (and new protections) will be legally binding.
Protecting Intellectual Property
While IP protections such as copyright and trademark can arise automatically and regardless of extra steps such as registration, preserving and protecting your intellectual property (“IP”) rights should be at the forefront of your TOS. Including terms to protect your IP directly in the TOS (for instance) clarifying that users cannot make use of your business’s logo, photographs, or blog posts for commercial purposes provides an additional layer of protection for you to rely in the event your content is misappropriated by users. If your website caters to other businesses or you have affiliate partners that you want to have the ability to use or share your content you can use the TOS to specify exactly what rights other parties will have with respect to your IP and where you want to limit those rights, clearly spell them out.
When users are allowed to contribute to a website’s content for instance by uploading content or providing reviews or testimonials in the case of an eCommerce company, you will want the TOS to clearly dictate the parameters of what users may contribute and what activities are clearly out of bounds. Common terms to include when users are submitting content are the consumer’s agreement that they will not:
- violate any federal or provincial laws
- post any obscene or threatening content
- expose any other users to inappropriate content
- violate content standards
- impersonate your business staff members
- promote illegal activities or others to violate the site conditions
While you cannot perceive all of the potential misuses that can come from your site, in the event a user’s conduct is at issue (or harm is caused to other users who have not violated your agreement) you can increase the chances that you will have legal recourse against the offending party for any damages you may suffer from their breach of the TOS.
Incorporating other policies to make them legally enforceable
Many website hosting services offer generic TOS for download when you use their services. However, you can be certain your website host had their TOS drafted by a lawyer. Website TOS provides powerful protections for your business and if you chose to rely on terms or conditions of use that are not tailored appropriately to your business you increase the chances that these agreements will offer little protection in the event of a dispute. Supply Law offers properly drafted TOS tailored to your business and with flat-fee pricing, there won’t be any surprises when it’s time to pay your invoice.