These provisions are typically included in a hyperlink at the bottom of a webpage. They can also be named terms of service, terms and conditions, conditions of use or similar phrases. The first rule about these provisions is that they should be easy to read and understand. The provisions are intended to be a legal agreement binding on the website user which establish the terms a user must abide by to use the website.
- Agreement to use the website only for lawful purposes (prohibits use of malware or other software that interferes with the content or use of the website);
- Disclaimer that the information on the site is for general information purposes and there is no warranty regarding the accuracy, completeness or usefulness of the information. The disclaimer should extend to third-party content if used on website;
- Acknowledgement that website content is owned by the company and is protected by copyright, trademark and other intellectual property laws, and the material cannot be reproduced or modified;
- If the website contains message boards, chat rooms or other interactive features, terms governing user-generated content so that user-posted material does not violate laws or company standards;
- Email address for feedback or comments relating to the website; and
- Traditional contract provisions such as disclaimer of warranties, limitations on liability, governing law and indemnification.
“Browsewrap” vs. “clickwrap” agreements
- A description of what kind of information you collect from users, why you collect it, how you use it, how long you store it and what information is shared with third parties;
- Disclosure that the company may have to release collected user information in response to warrants, subpoenas or other legal process;
- How to request changes to, or a review of, any information of the user that is collected and stored;
- An opt-out procedure for users who do not want their information shared with third parties or used by the company;
- The policy should identify the date it was last revised.
The word “privacy” should be used in the title of the policy and any links to the policy.
1 See, e.g. Berkson v. Gogo LLC, 97 F. Supp.3d 359 (EDNY 2015)