I accept!

by McAfee & Taft

So, you’re ready to launch your new online business or mobile app. The website looks great, and the app tile has an elegant, simple design that’s sure to stand out on phone and tablet screens. Missing anything? Oh, yeah, that boring stuff that no one reads anyway…the terms of service.

Pull up terms of service on Google and you’ll see lots of templates for preparing them. But one size doesn’t really fit all here. While you may think that everyone will just accept the terms without reading them anyway, it actually does matter what the terms of service say.

The type of website or app that you offer will dictate the terms of service that you’ll want to utilize. For instance, sites that sell goods and services must make the conditions of sale clear. Sites that are designed as forums for interaction between users won’t need a lot of language about sales, but will need to spell out user conduct rules and the consequences for breaking them.

For most apps and websites, the terms can be broken down into a few categories:

User ground rules

If you have an interactive site where users can post content, you will want to limit your liability as the site owner for bad behavior by your users. Make it clear that the site does not permit the posting of infringing, illegal or defamatory material, and make it clear that as the site owner, you have the right to remove offending material or block users from the site if they offend. Spell out your policy for requesting takedowns and be clear that it is the user’s responsibility, not yours, to be sure that whatever they post doesn’t violate someone else’s rights. The keys here are clarity and consistency: Make it easy to understand what is and isn’t OK, and be consistent in your enforcement of any consequences. Don’t threaten consequences that it would be impractical to impose or would create unnecessary burdens for yourself. If you aren’t going to monitor the site closely, you don’t want to indicate that violations will be addressed within 24 hours. The terms of service should include a disclaimer of responsibility for user posted content.

Data collection

If your site collects information from users, the terms of service should include some type of privacy policy that addresses who is collecting the information, what they are going to do with it once it’s collected, and how it will be stored. If you don’t collect data, say so in your policy. The most important thing to remember about this section is that you must be clear about what you are promising to do to safeguard information, and you must fulfill whatever promises you make. The Federal Trade Commission can and will take legal action against you for violating consumer privacy rights.

Underage users

If you run a website or offer an app that is directed at children under the age of 13, there are special considerations. COPPA, the Children’s Online Privacy Protection Act, requires that you provide direct notice to parents of the name, address, telephone number, and email address of all operators collecting or maintaining personal information through the site or service and a description of what information the operator collects from children. You must also obtain verifiable parental consent before collecting personal information online from children, and you must give parents the choice of consenting to the data collection and use of a child’s information and give them access to their child's personal information to review. They must have the option to have the information deleted and the ability to prevent further use or online collection of a child's personal information. Children’s data must be handled with special care to maintain confidentiality, security, and integrity of information, which means that selling or releasing data to third parties could create liability. The best practice is to limit the time you keep personal information collected online from a child to only what’s necessary to fulfill the purpose of the collection, then delete it to guard against unauthorized access or use.


If the site or app focuses on selling goods or services, don’t hide information about warranties, pricing, safety, restrictions or qualifications of the products in the terms of service. FTC guidelines on fair advertising require that you clearly and conspicuously disclose all the information about an offer that is likely to affect a consumer's purchasing decision. It’s OK to use a hyperlink to tell consumers about less critical terms and conditions of an offer, but don’t bury key information in the TERMS OF USE/ TERMS OF SERVICE.

The best advice can be summed up this way:

  1. Be clear about what you're promising.
  2. Don't promise more than you can do.
  3. Do what you promised.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McAfee & Taft | Attorney Advertising

Written by:

McAfee & Taft

McAfee & Taft on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.