How to Create the Ideal Website Agreement Template
An Overview of Website Agreements
A website agreement, which is sometimes referred to as a Terms of Service (ToS) agreement, is a document drawing a line in the sand as to what the website in question agrees to as well as what it does not as well as what is expected from a website user. As you can imagine, unique websites will have unique needs and requirements which will be reflected in a website agreement. However, at the core, a solid website agreement template should include words that cover various common elements.
One thing to keep in mind is that everything you write into your website agreement is legally binding. This means that nothing that isn’t in writing can be legally enforced. So the first thing you should do is make sure you have a way to inform your website users that they are entering into an agreement with you. Ideally , a check box that is presented to the website user during the registration process or other place of interaction with the website where the check box is visible before any personal or sensitive information is entered.
Now there is no "standard" website agreement. Some website owners provide for an automatic agreeance without a check box provided that it is clear the website user has agreed to the terms. Some simply make the terms available to anyone in some obvious place on the website. However, if a dispute arises, how a court would view that and whether or not the user’s click on the website agreement matters will depend on where those terms are found and the context surrounding them.
As an example, if the website agreement is offered below the form for signing up for the website and there is not a plain and clear "SEND" or "NEXT" button that would signal the website user is submitting or moving forward on the information they are providing on the sign-up form, then there would be a question whether the terms were properly accepted. This is a subjective analysis, so there is no guarantee a court would find in your favor. The best thing you can do is review some existing website agreements and then craft your own according to your business goals and objectives.
What to Include in a Website Agreement Template
Every website agreement template should include several key components at a minimum. Terms of service need to be included so that visitors, customers and clients can understand the guidelines for using the website. Privacy policies should be included to help protect your personal information and that of others. Copyright and trademark disclaimers of liability must be listed to help protect the website owner from copyright and trademark infringement claims. All of these things should be contained in any website agreement template that is drafted.
In addition to those basic components, a good website agreement template will also contain the necessary contact information so your customers can reach you if they have questions, concerns or comments. A paragraph about websites that contain links should be included, as well as a paragraph about how your website may or may not be compatible with their browser. You may also want to include sections about online payments, warranties and guarantees, and sales tax. For e-commerce websites especially, sales tax policies need to be addressed. The more information you include in your website agreement template about policies that pertain to your website, the better off you are in the long run, but you should consult a qualified attorney for assistance in drafting this important document.
Legal Considerations and Compliance
Compliance with website agreements is essential to their effectiveness. In addition to the standard terms commonly associated with such agreements—like licensing, indemnification, and liability disclaimers—certain legal requirements must be satisfied, depending on the nature of the site’s content and how the site interacts with its users. For example, if site users are permitted to post content, the site operator may be required to notify users that it intends to remove infringing or otherwise unlawful content within a specific period of time (for example, the Digital Millennium Copyright Act ("DMCA") requires site operators to "take down" infringing content within 72 hours of receiving notice of infringement, 17 U.S.C. § 512(c), but the site operator cannot be charged with knowledge of any allegedly infringing content until after it has already received such a notice, 17 U.S.C. § 512(c)(3); this, of course, varies greatly by country, as does the required notice of alleged infringement).
The General Data Protection Regulation ("GDPR") is the most expansive regulation of its type, and imposes various legal requirements on any entity that collects, processes, stores, or otherwise retains the personal information of residents of the European Union. The GDPR requires a clear explanation of the personal data collected, the purpose of its collection, and the basis for collection (as well as other requirements related to consent, access, erasure, and breach notification). Further, the GDPR requires "privacy notices" on websites that collect or process personal data of E.U. residents. Similarly, the California Consumer Privacy Act ("CCPA") also requires a notice for data collection prior to collecting personal information from consumers residing in California.
How to Personalize Your Website Agreement Template
To make sure that your website agreement or terms of service template fits your specific website, you should customize it to address any unique features or functionality of your website, as well as details about your audience. For example, if your website enables users to upload content such as artwork, images, or text through a blog, then you should have terms of service templates that are appropriate for a member-generated content site including disallowing any illegal activity and what the terms of uploading that content are. On the other hand, if your site allows for online purchases of the latest fashions, then your e-commerce website agreement template will need to address issues with online payment processing and returns policies. Websites that employ a subscription model to charge users need a terms of service template that fits their audience. Such common subscription services include media websites (e.g. Netflix, Hulu), music services (e.g. Netflix, Pandora, Spotify), and cloud storage devices for photos (e.g. Google Drive, Dropbox). If your website is based on user interactive features and applications, like chat rooms and forums, then your website agreement template will need to address user generated content extensively and generally lay forth rules of engagement for user interaction.
How to Write Good Website Agreements
When using an a website agreement template, it is important that the language in the agreement does not confuse the users. Write your agreement in plain language and avoid jargon. Avoiding legalese can help the reader to easily understand the terms, but it can also make it harder to enforce. So if you need to use legal terms, define the terms clearly in a glossary.
Some common pitfalls includes:
Using language or terms that don’t make sense. If something is unclear it must be explained clearly. Assuming the user knows what you mean. Don’t: (a) assume the user already has some knowledge of the law , (b) assume the user understands how you will use their information, or (c) assume the user understands where they are giving consent. Don’t use passive voice. It’s best to avoid passive voice because the reader is not focused on the subject of the sentence. For example: "Your information may be shared by us" can be unclear. Instead, use "We may share your information." It is important to be specific about what must be agreed to. This means that you might need to use separate exhibits for different services if the agreement applies to several different services. By separating services, it will be easier for the reader to understand their obligations.
Amending and Updating Your Website Agreement
Just as a website is not a static thing, neither is your website agreement. As you update your website, so to must your website agreement. Of course, a website changes not only with time, but as a result of specific events. For instance, if you decide to sell certain products through your website, you will likely need to update the agreement. Similarly, if you discontinues certain products, or even transitions away from one type of product to another (such as providing services instead of goods), you will likely need to update your agreement.
Furthermore, it should be noted that even if you do not periodically update your website, that the law is always changing, necessitating periodic review of your website by your attorney to ensure you are continuing to comply with all current legal requirements.
Finding the Right Template for Your Business
Evaluating and selecting the right template is crucial when it comes to ensuring that your website agreement is tailored to your specific needs. The first factor to consider is how complex your website is. If you have custom components or an e-commerce site, you will likely need a more robust template that covers varied aspects of site ownership, operation, responsibilities, etc. You should also consider the speed with which you need your agreement: If you do not have the time to personalize an agreement yourself, you can look to pre-packaged templates with broad legal coverage that require very little customization from your end.
Conversely, if you would like your terms to be as specific as possible, you may want to buy an "empty" template that you can fill out with your own terms. When purchasing a template, keep in mind standard or boilerplate provisions that you will likely want to include in your final template. For example, while you may want to define what "site users" means in your agreement, you will probably want to use standard language to define the "laws in your state." Certain types of websites may require certain provisions that are not included in the template you may be considering.
While not generally needed for websites, if you have a blog, you should check if a privacy policy is needed in order to comply with privacy laws . For instance, you might consider using a CCPA policy in the case of a company doing business in California. You should also consider the privacy of minors when dealing with children’s privacy and other protections that such minors are entitled to under the Childrens’ Online Privacy Protection Act (COPPA). Check if your service provider stipulates that minors are not allowed to use the site or service within their privacy policies. Additionally, before you choose a template, you should read the templates’ user agreements and licensing agreements carefully, as they will not only allow you to understand what is allowed within that template, but also what weights those templates carry. Options might include as-is and legal support options, so consider what suits your needs best as well. As a quick tip, check to see if the service provider would let you view the document sample before purchase.
Unless the service provider stipulates otherwise, most online website agreement templates are meant to be personalized to suit your business needs. Striking a balance between customization and broad coverage depends on the time available and the complexity of your site. By considering some of these points, you should have a good idea of where to start.