5 Clauses That Must Be in Every Terms of Use
In today’s digital world, where mobile applications and online platforms have become an integral part of everyday life, the issues of security and transparency in the online space are becoming increasingly relevant. From social media to work tools and online shopping — all of this has been made possible by countless mobile applications and platforms. But before using any such service, it is important to read its Terms of Use.
Terms of Use is a legal document that describes the rules, obligations, and responsibilities of both users and the companies that own websites, platforms, applications, or other services. Familiarizing yourself with these terms in a timely manner helps avoid misunderstandings and conflicts, and ensures the safe and lawful use of services.
These terms are not merely standard texts that most users pay little attention to. In fact, Terms of Use are of critical importance, as they define the rules of interaction between the service and its users. Moreover, there are specific points that must be included in such terms in order to protect both parties and maintain the safety of using the service.
Below we propose to examine the 5 key clauses that must be provided for in the Terms of Use of any service.
Terms of Use govern the interaction between the user and the service, defining the rights and obligations of both parties. The article examines the 5 key clauses that must be included in Terms of Use to ensure security, transparency, and the protection of users’ rights. Read on.
Clause 1. Rules of Access to the Service and Account Registration
This clause answers the question of who may use your service and under what conditions. Every user who wishes to use your service must clearly comply with the established rules and terms, which in turn means that the Terms of Use and other policies governing the use of your service must be accessible to users for review.
By visiting your service, the user not only gains access to useful information and services, but also automatically confirms their agreement to the Terms of Use — even without clicking an “I agree” button. This means that the user undertakes to comply with all the rules set out in the Terms of Use, as well as to fulfill requirements that may be established in the course of using the service in the future.
A fairly common formulation is along the following lines:
“Please read these Terms carefully before accessing and using the Website. By accessing and using the Website, you confirm that you understand, accept, and agree to abide by these Terms, along with any instructions, policies, or rules of the Company, which form an integral part of these Terms. If you do not agree with these Terms, do not use our Website or the Company’s Services.”
Another of the most important points is the clear definition of the rules for registration and access to an account, if this is provided for in the service’s functionality. Users must clearly understand what requirements apply to the process of creating an account. These may include basic requirements for verifying personal data (such as full name, phone number, or email address), as well as for choosing a password and securing the account. The Terms of Use must state that users are responsible for the security of their accounts and for all actions carried out through their account.
In general, the registration terms should be simple and easy to understand, but they must clearly describe how a user can regain access to their account in the event of it being blocked or a forgotten password. Additionally, it is important to state that users must not share their login credentials with third parties and are obliged to notify the service administration of any cases of unauthorized access to their accounts.
Clause 2. Service Capabilities and Functionality
The Terms of Use describe the functionality of the service offered to users and what services can be ordered from the company.
We advise against describing each service feature in detail, especially if you plan to continuously add new capabilities. Specifying too many specific features in the Terms of Use may result in the need to update them constantly each time the functionality changes or new features are added. It is better instead to use more general formulations, as it is important for Terms of Use to be sufficiently flexible and not tied to specific technical details.
For example, rather than specifying that the user will see all available order forms within the service’s operation only after clicking a specific “Make an order” button, you can simply state: “The user has the ability to access service ordering options in accordance with the functionality available at the time of use.”
This allows you to modify the service’s functionality without needing to constantly edit such details in the Terms of Use.
Clause 3. Rules of Use and Prohibited Actions
The Terms of Use establish that users are obliged to comply with all applicable local, state, national, and international laws, regulations, and rules, as well as other legal documents and policies governing the use of your service, and must not create obstacles for other users in the course of their use of the service.
The Terms of Use must define how users may interact with the service and what actions are prohibited. In particular, it is very important to establish a prohibition on using the service to distribute illegal content, malicious software, viruses, or offensive and discriminatory materials. Other prohibited actions may include spam, fraud, infringement of intellectual property rights, and the use of automated scripts or bots for data collection.
This will help prevent abuse of the service and protect your reputation. It is also important to state that the company may restrict a user’s access to the service or even block their account for violations of the established rules.
Clause 4. Intellectual Property Rights
Another important point that cannot be ignored in the Terms of Use is the issue of intellectual property rights.
Here you must clearly specify who owns the content posted on the platform. All intellectual property rights to the platform — including, but not limited to, source code, design, functionality, text, graphics, audio and video content, logos, design elements, articles, opinions, photographs, illustrations, trademarks, trade names, service marks, patents, databases, and other components — belong exclusively to your company.
Users are granted a limited, non-exclusive, non-transferable right to access and use your service solely for personal or commercial purposes within the framework defined by the Terms of Use.
Users must be informed that they do not have the right to use content without the appropriate permission. Any copying, modification, distribution, reverse engineering, or other use of the platform, code, or any other components without your prior written permission is strictly prohibited.
In the Terms of Use, such a restriction of rights may be worded as follows:
“Subject to your compliance with these Terms, we grant you a limited, personal, non-exclusive, non-transferable, revocable, non-sublicensable license to use the Website and the Services solely for your use and for you to access and use information made available through the Website and the Services. Any rights not expressly granted herein are reserved by the Company and other licensors.
You are prohibited from using any trademarks, content, or other intellectual property featured on the Website for any purpose without the express written permission of the Company. All intellectual property displayed on the Website is owned by or licensed to the Company, and you agree not to copy, reproduce, distribute, or otherwise exploit any of this content without prior authorisation.”
On the other hand, the Terms of Use may also govern how a user may publish their own content and who will own that content after it is published. In such a case, it is necessary to state that the user bears full responsibility for the accuracy, reliability, quality, legality, and compliance with intellectual property rights when posting their content.
Clause 5. Disclaimer
A disclaimer is an important part of every Terms of Use. It is a legal instrument that gives you the right to disclaim liability for various technical issues, any possible losses or damages that may arise during the use of your service.
In many cases, platforms bear no liability for problems that may arise due to technical failures, server malfunctions, improper use of the service, or force majeure circumstances. If users violate the Terms of Use or use the service improperly, the company bears no liability for the consequences of such use.
Since the disclaimer is an important part of the Terms of Use, it should be formatted in a way that draws users’ attention to it.
In the United States, it is established at the legislative level that disclaimers regarding limitation or exclusion of warranties and liability must be conspicuous to the user. The most common way of achieving conspicuousness is the use of CAPS LOCK.
The use of CAPS LOCK became widespread following the adoption in the United States of the Uniform Commercial Code in 1952 (UCC). The UCC expressly requires the use of “conspicuous” text when establishing exclusions or limitations of warranties in a document.
§ 2-316 Exclusion or Modification of Warranties (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” (3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, 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; and (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
The UCC provides a definition of the term “conspicuous,” which essentially requires that the text of the document be highlighted in some way and made noticeable to the person to whom it is addressed.
§ 1-201. General Definitions (10) “Conspicuous”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
Disclaimers must therefore be distinguished from the surrounding text. However, making disclaimers conspicuous can be achieved not only through CAPS LOCK, but also by using a different font size, contrasting font, different color, style, a border, or any other typographic technique. The key point is that the highlighted text must be noticeable to the user and must not get lost among the rest of the document’s text.
Below is an example of how Google formats its disclaimer:
GOOGLE TERMS OF SERVICE
And here is how Microsoft does it:
Microsoft – Terms of Use
Such formatting allows users to understand that by using the service they agree to potential risks. The importance of this section cannot be underestimated, as it protects the company from unwanted legal claims and creates clarity in the relationship with users.
We would also like to note separately that the service must contain information on how the company processes and protects users’ personal data. This is especially important in the context of modern data protection legislation, and in particular the GDPR (General Data Protection Regulation) in the European Union. Users must clearly understand how the company collects, uses, protects, and discloses personal information. As a rule, the terms relating to the processing and protection of users’ personal data are set out in a separate Privacy Policy, which forms an integral part of the Terms of Use. It is therefore important to state that users, by agreeing to the Terms of Use, also agree to the Privacy Policy.
Also, when preparing Terms of Use, do not forget to include a provision explaining how users can contact you to resolve disputes or questions related to your service.
Terms of Use govern the interaction between the user and the service, defining the rights and obligations of both parties. The article examines the 5 key clauses that must be included in Terms of Use to ensure security, transparency, and the protection of users’ rights. Read on.
Conclusion
Every website, platform, application, or other service must have clearly defined Terms of Use in order to avoid misunderstandings between the user and the company. This will not only establish the rights and rules of conduct for users regarding the use of the service, but will also help the company protect its reputation and avoid legal problems. The terms must be detailed, transparent, and compliant with the requirements of applicable law.
Planning to launch a website or application? Not sure how to prepare Terms of Use?
If you have doubts or questions — don’t take risks! It is better to seek advice from professionals who will help you avoid legal mistakes and ensure reliable protection for your business.
The Legal IT Group team has extensive experience in developing and implementing Terms of Use, Privacy Policies, and other legal documents for a wide variety of websites, platforms, applications, and other services. We are always ready to help you create clear and legally sound terms and policies that will protect your interests.
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