However, there are certain clauses that courts will not enforce under any circumstances. For example, clauses that are designed to trick or exploit the user, or clauses that are forbidden by law.
These documents usually serve the same purpose but can be used in different contexts.
We've divided our template into three broad sections:
Take a look at how Evernote does this:
Here's how SEQ Legal does this:
We'll look at this in more detail below.
This example from Tito should give you some idea of how to handle this clause:
Tito states that:
Your website or app may be unsuitable for people under a certain age.
Here's how Bumble explains this:
It's also illegal to use certain services in certain places. Sports-betting service Bet365 makes this clear:
Emphasize that it is your users' responsibility to use your services only if it is legal for them to do so.
You should also include a general clause that outlines any specific behavior your users are not to engage in when using your website or service. Common restrictions include screen-scraping, spamming other users and reverse engineering proprietary software.
Here's how Bet365 restricts the commercial exploitation of its information, using automated software to extract anything from the website and other specific limits:
If you charge for your services, it's crucial that you set out the terms of payment very clearly, including:
Here's a short excerpt of a section like this from HubSpot's Terms of Service:
Many apps and websites allow users to upload and share their own content. Common examples of user-generated content include:
Here's what Spotify's terms has to say about user-generated content:
Spotify's user-generated content clause achieves four important things:
Here's an example from SoundCloud:
It's up to you how you manage account suspension and termination. Just make sure you have a clear system. You should also leave yourself a lot of discretion.
You should take every reasonable step to ensure that you don't cause any loss or harm to your users.
Here's how Aptitude Software disclaims responsibility for spreading malware via its site:
Aptitude also has a general disclaimer clause that disclaims the company's responsibility in the event of inaccurate or incomplete information, losses or damages from using the website and if a user violates laws by using the website:
Here's a disclaimer about links to third-party sites from Perform Parties:
Disclaimers like these warn your users that they use your website or app at their own risk. However, they aren't guaranteed to "stand up in court." You may be held liable for certain acts of negligence (we'll look at this in more detail below).
The best way to understand an implied warranty is to contrast it with an "express warranty."
The principle of implied warranties (or "implied terms") applies in many countries. We'll focus on US law, where there are two main implied warranties:
The UCC § 2-316 is pretty strict about the wording you must use if you want to try to exclude these implied warranties:
"[...] all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."
See our article about disclaimers for more information and examples on the variety of types of disclaimers you may need or want to include in your agreement.
A limitation of liability clause protects your company's interests. It prevents your users from suing you in excess of a specific amount (which you determine).
There's a related clause, known as an "exclusion of liability." This prevents your users from suing you at all. Generally speaking, however, the courts are more likely to enforce a limitation of liability than an exclusion of liability.
Sounds complicated? Well, here's how Tracking Wonder explains its limitation of liability clause in a pretty blunt way:
A limitation of liability clause normally consists of:
Here's an example from Twitter:
A rough translation of what Twitter is saying:
Note that Twitter's limitation of liability clause is in all caps.
UCC § 1-201 requires that certain contractual clauses (such as a limitation of liability) are "conspicuous." Using upper-case letters is one way to achieve this.
An "indemnification" or "hold harmless" clause generally applies to services that allow user contributions.
Let's say one of your users posts something defamatory on your website. The defamed person sues your company for $1 million. You spend $100,000 on legal fees defending the case. You lose.
If the user who posted the defamatory content has agreed to an indemnity clause, you can then sue that user to get your $1,100,000 back.
Here's an example of a clause like this from Flick:
Here's an example from Royal Gold:
Just like in a football game, a legal battle has a significant "home advantage." You'll almost certainly want to choose the legal jurisdiction in which your company is based.
But what's the best way to go about getting acceptance?
This is known as a "clickwrap" agreement.
Here's Google's clickwrap mechanism:
The user can't create an account without clicking "I agree to the Google Terms of Service." If Google attempts to enforce this agreement, the user can't reasonably claim that they never accepted it.
However, it's not possible for everyone to obtain explicit agreement in this way.
It's much harder to enforce a browsewrap agreement. A user could easily claim that they never read it, and, therefore, did not agree to it.
However, the courts are more likely to enforce your browsewrap agreement if you:
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
16 January 2020