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7 Key Elements of Effective Terms of Use: Permitted Use of Website

Terms of Use, also known as Terms of Service (TOS), describe the terms and conditions which govern the relationship between the user of a website and its operator or publisher.  From a legal standpoint, the Terms of Use may be the most important page of the website.  Properly-drafted Terms of Use assist the website operator in managing user expectations, avoid disputes, and limit otherwise crippling legal exposure.

Most, if not all, effective Terms of Use address seven key concepts:  (1) the uses of the website and its services which are permitted by the website operator; (2) the manner in which user-created content is handled by the website operator; (3) an appropriate disclaimer of warranties which might otherwise apply to the website content or services; (4) a provision limiting the liability of the website operator for certain types of conduct; (5) a reference to the website's privacy policy or explanation of how information belonging to website users is collected, maintained, and used; (6) an explanation of which state's law governs the Terms of Use and where and how disputes between the website operator and a user will be resolved; and (7) a provision describing how and under what circumstances the terms of the Terms of Use may be modified.  In this series of posts, we will identify and briefly describe each of the seven key elements of effective website terms of use, starting with:

1. Permitted Use.  A website's Terms of Use should clearly communicate to its users what is permitted and what is prohibited with respect to the website content and services and the actions which may be taken by the website operator if the website is used in a way which is prohibited or unintended. Permitted use provisions vary in length and complexity.  Google's permitted use provision is "Don't Be Evil"-esque in its simplicity:

Don’t misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.

On the other end of the spectrum, Instagram's Terms of Use includes a fairly long list of prohibited activities:

2.  You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Service.

4.  You agree that you will not solicit, collect or use the login credentials of other Instagram users.

6.  You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.

7.  You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.

9.  You must not change, modify, adapt or alter the Service or change, modify or alter another website so as to falsely imply that it is associated with the Service or Instagram.

10.  You must not access Instagram's private API by means other than those permitted by Instagram. Use of Instagram's API is subject to a separate set of terms available here: http://instagram.com/about/legal/terms/api/ ("API Terms").

11.  You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a "spam") to any Instagram users.

12.  You must not use domain names or web URLs in your username without prior written consent from Instagram.

13.  You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Instagram page is rendered or displayed in a user's browser or device.

14.  You must comply with Instagram's Community Guidelines, available here: http://help.instagram.com/customer/portal/articles/262387-community-guid....

15.  You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.

16.  You must not attempt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Terms of Use or any other Instagram terms.

17.  Violation of these Terms of Use may, in Instagram's sole discretion, result in termination of your Instagram account. You understand and agree that Instagram cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for Instagram, we can stop providing all or part of the Service to you.

Most websites benefit from an approach which lies between Google and Instagram, in terms of detail and complexity.  A good example of that approach is found in the Terms of Use for Saturday Market Project, an online marketplace for do-it-yourself projects and supplies:

5. Permitted Use.

5.1 You must use the Site only for the purposes expressly set forth on the Site and in this Agreement. Any other use of the Site is prohibited. If there is a conflict between any statement on the Site and any provision of this Agreement, the provision of this Agreement will apply.

5.2 Notwithstanding any other provision of this Agreement, You must not: (a) access or use the Site for any purpose that is unlawful; (b) access or use the Site for any purpose that is not expressly permitted by the Site or this Agreement; (c) access or use the Site in any manner that could damage, disable, overburden, or impair any Company computer system, server, or network; (d) access or use the Site in any manner that interferes with any other person’s access or use of the Site; (e) attempt to gain unauthorized access on the Site, other accounts, or any Company computer system, server, or network; or (f) access or use materials or information through any means not intentionally made available by Company.

5.3 Notwithstanding any other provision of this Agreement, You must ensure that your use and access of the Site complies with all applicable laws and regulations.

5.4 The Site is not intended to be used by persons under the age of 18. You represent and warrant that You are at least 18 years of age. If You are not at least 18 years of age, You must not access or use the Site.

5.5 If You fail to abide by this Agreement in any way, or fail to pay any amount owed when due, Company may prohibit you from accessing or using the Site. No action or omission by Company will be deemed to be a waiver of any right or remedy provided under this Agreement or under applicable law.

At a minimum, an effective permitted use provision will require users to use a website in accordance with law and prohibit accessing, or attempting to access, the website in any way that could interfere with the availability of the website and its services to other users. 

This is the first in a series of posts describing the seven key elements of effective website Terms of Use. Next week, we will address the second key element of effective Terms of Use:  a description of how user-created content is handled.  

© 2020 Odin, Feldman & Pittleman, P.C.National Law Review, Volume IV, Number 170
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About this Author

Jonathan D. Frieden, Odin Feldman Law Firm, E-commerce Attorney
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A degree in systems engineering and a background in computer coding have helped inform Jon Frieden’s approach to successfully handling a broad range of matters for his technology clients. As a self-described “early adopter,” Jon was one of the first attorneys in Northern Virginia to focus on Internet law and e-commerce.

With a practice centered on complex Internet- and technology-related commercial disputes and transactions, Jon brings a two-pronged approach to helping clients achieve success. Jon’s litigation experience helps structure deals for his clients that avoid potential...

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