1. Using a cut and paste or template.
When it comes to contract law, one size does not fit all. Your products and services are different from everyone else’s, so why use a template that does not take into consideration your unique services and leaves out critical terms that could protect you if something goes wrong?
2. Forgetting to make your TOU enforceable.
- Adequate notice of the existence of the proposed terms;
- Meaningful opportunity to review the terms;
- Adequate notice that taking a specified action manifests assent to the terms
- Action specified in such notice is taken by the user.
4. Not applying your business model, special services and location.
(a) The name, address, and telephone number of the provider of service.
(b) Any charges to the consumer imposed by the provider for the use of the service.
(c) The procedures a consumer may follow in order to resolve a complaint regarding the service or to receive further information regarding use of the service, including the telephone number and address of the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs.
If you have specialized products, have links to the specific terms of service for those products in your TOU and if work with vendors and consumers, be sure to lay out differing terms for each, either within the same document or separately.
4. Conflicting terms with paper contracts.
5. Not protecting your content and/or regulating the risk around third party content. Most online services involve some sort of content, whether it is articles, news or information. If you have your own content be sure to note that you own your content and put limits on how you want it used (that includes no framing and no reselling).
If you allow others to post content or provide information to your service/site make sure that you have a code of conduct, Digital Millennium Copyright Act takedown request instructions and the keep the right to remove both any violative content and if necessary, the offending poster’s account.
If there are links to third party content or sites such as Facebook or Google, be sure to note that as well and make clear that you are not responsible for third party links/content or what your users choose to share on those sites. The United States provides some civil immunity for third party content under Section 230(c) of the Communications Decency Act of 1996, but other countries, like the United Kingdom, do not and will require you to take down offensive, libelous or slanderous content when discovered. You may also wish to have language that licenses user suggestions for improvements or changes that you use.
- Limitation of liability with a claims cap
- Disclaimer of warranties
- Customer or vendor indemnities for misuse of your services
- Third party links or services
- Disclaiming liability for lack of network access or force majeure events
- Waiver of jury trials and class action suits.
Keeping an eye out for these six mistakes can go a very long way toward managing risk on your sites and keeping the lights on.