How to Implement Terms of Service on Your Website

I often hear a lot of developer's say to just copy someone else's Terms of Service, make some minor changes & call it good. This is obviously not great legal advice. Today I actually learned some important concepts in regards to Terms of Service thanks to the Hanselminutes podcast & his guest Gary Nissenbaum.

  • By agreeing to Terms of Service you often waive the right to sue the company or agree to use an arbitrator process defined by the company instead of a court.
  • An arbitrator has less structure than a court system but is usually an expert in the field being discussed & is a quicker process. With an arbitrator things like appealing can be difficult.
  • I've always wondered why you can get away without a signature when agreeing to a Terms of Service. Gary gave a great example on this. Basically it comes down to the company or store needing to do a reasonable effort of providing the Terms of Service to their visitors. "Reasonable" is where court opinions get involved.
  • There are 4 common types of displaying Terms of Service.
  • The 2 more recommended types cause the user to perform a significant action:
    • Click Wrap which is where you check a box agreeing to the Terms of Service
    • Scroll Wrap which is where you have to scroll to the bottom of the Terms of Service before continuing
  • In short, to make your Terms of Service enforceable, do your best to make them visible & require some type of action agreeing to them.

This was an excellent episode on what often is a dry subject. I highly recommend checking out the episode on Hanselminutes, Terms of Service for Developers - ToS explained with lawyer Gary Nissenbaum.