• Define how users can interact with the website. If your users can upload or post outside content (like Flickr, Facebook or YouTube allow their users to do), it is critical that your TOU require users to affirm that they either own the content they are posting or have permission to use it. You (the website) especially want to protect yourself from claims that the content posted by your users on your site was the intellectual property of someone else. For example, if you allow your users to upload videos, you want legal protections in place if the user uploaded a video created by someone else and the user didn’t have permission to upload it. You need to limit your liability to the owner of that video in the event that a copyright infringement lawsuit is brought by the owner against your website for showing a video uploaded by your user.
• Designate an agent to deal with complaints under the Digital Millennium Copyright Act (DMCA) if your site allows users to post content. You will also need to comply with the DMCA’s takedown provisions if you receive complaints from a copyright owner.
• Affirmatively state that the website owns all content that was originated by the website (including the appearance of the website, the content, and the website’s trademarks).
• Your TOU should include a user’s code of conduct if the site’s users will have the ability to interact with each other.
• If you will be offering your product or services for a fee, your TOU may need to include pricing information and payment details.
• Depending on the field that you operate in, you may need specific disclaimers. For example, if you operate in the health care field, you may need disclaimers stating that you are not providing medical advice.
• Your TOU should include limitations on your liability in terms of the type and amount of damages you could be responsible for. It is also common to shift responsibility for damages resulting from the user’s breach of the TOU to the user (usually using indemnification provisions).
• There are many boilerplate provisions in TOU, including language to prevent the unauthorized manipulation of the website, data harvesting and other similar actions, and identification of a state where disputes about the use of the website will be determined. To get an idea of what types of provisions should go into TOU agreements, it can be helpful to look at what others have done who are operating in the same space as you. While you should not copy others’ TOU for many reasons, reviewing examples can help you determine what you may need in yours.
If you have downloadable software or a mobile application, you will need an end user license agreement (EULA) that will similarly govern the downloader’s use of the app. EULA’s often look very similar to a website’s TOU.