Startup Lawyer Blog

In an effort to save money, an entrepreneur will take a short cut and copy another website’s Terms of Service or use a template off the web. How important can the terms actually be? You’ll rarely overhear someone exclaiming, “I always read the terms of service!” In fact, you’re much more likely to hear, “I’ll just copy these blocks of boilerplate onto my site. What’s the worst that could happen?!”
While admirable in a bootstrapping sense, this do-it-yourself approach can get you into hot water. Your Terms of Service is a legal document. If you don’t understand the clauses you are copying and pasting, you might find yourself expending a lot of time and – importantly – money down the road.
Let’s start out by understanding why a Terms of Service agreement (TOS for short, but also known as “Terms of Use” or “Terms and Conditions”) is important. This document is a binding legal contract that you form with the users of your website. Whether read or unread, the TOS governs what happens on your website. Among other things, it should govern what content you own on your site, your responsibility for data collected on your site, and all payments you receive for services or goods offered on your site. Your TOS will be a crucial document if you’re ever pulled into court if a user sues you. These are just a handful of the important reasons to have an appropriate and properly considered TOS in place.
Now that you understand the significance of the TOS, here are some reasons you should think twice about simply copying someone else’s TOS.

Reason Number One Not to Copy: This is Someone Else’s Copyrighted Work

Wholesale copying and pasting of another website’s TOS and passing it off as your own amounts to copyright infringement. Despite having similar sounding language and a general lack (but not absence) of creativity, TOS’s are protected materials under copyright law. Copying and pasting this same document and posting it on your website is legally similar as passing off another’s photograph as your own. You should have a lawyer draft a TOS specifically for your website, or look into an appropriate open-source licensed TOS.

Reason Number Two Not to Copy: Ensuring You Own Your Content

An essential part of your TOS addresses who owns the content on your website. Things like your company name and logo posted on your site, original content you generate and post on your site, like articles or photos, and even some user-generated content, constitutes your intellectual property. If you copy and paste this section from another website, they might have a different scheme of content ownership, and you may inadvertently give up your IP rights to your original content. Therefore, you want this section to be specific to your website and comprehensive in its explanation of your content and IP rights in that content.

Reason Number Three Not to Copy: Data Collection

Data collection refers to a section in your TOS that details what kind of data you collect about your users and what you do with that data. This section is so important for sites that collect large amounts of user data, this section is often folded into a separate privacy policy. In fact, many states (e.g., California) and foreign jurisdictions mandate the posting of privacy policies.
Data collection practices will vary greatly based on the type of website you are operating. The type of data a social network is going to collect is different from the data collected by a retail or commerce website. Anytime you collect personally identifying information, such as user’s contact information, credit card numbers, photographs, etc., you should have a clearly defined policy which sets out what you plan to do with this information and how you will be sharing it. This section needs to be tailored to your particular website and to the services it offers.

Reasons Number Four Not to Copy: Out of State Litigation

In every TOS, there is a section that addresses where disputes that arise under the TOS will be litigated. If you copy and past another website’s TOS, you may inadvertently be requiring yourself to litigate in California under California Law when you live in and conduct your business in New York. So, in copying someone else’s TOS you could be volunteering to be pulled into a court halfway across the country (or even in another country!) if sued by a user, which is a time consuming and expensive endeavor.
Reason Number Five Not to Copy: Receiving Payments for Services from Users
How you receive payments for your goods or services, when you receive those payments, what warranties you offer customers, etc., are important issues for any business. Websites aren’t any different. You need to let your users know the terms associated with payment for your products, so in the event of non-payment, refunds, or other types of disputes, you have evidence that the user agreed ahead of time to those terms, as set out in your TOS.

These are just a few areas impacted by a TOS. To ensure you have terms that adequately protect your interests, your best bet is to seek the advice of an attorney who can help tailor the agreement to your needs. To speak with an experienced attorney from General Standards, click here.

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