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Do’s and Don’ts For Terms of Service and Privacy Policies

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When putting together your Terms of Service and Privacy Policy there some things to keep in mind. Although I’d recommend hiring an experienced attorney to draft your Terms of Service and Privacy Policy, the reality is that hiring an attorney is not always feasible from a cost and timeline perspective. Not hiring a lawyer may leave you open to legal liability but sometimes bootstrappers and entrepreneurs have to accept that as part of the cost of doing business. With that in mind here is a helpful list of do’s and don’ts to keep in mind!


  • Do Understand How You Want Your Business To Work – This may sound redundant but many owners haven’t thought in detail about the inner workings of their business.  As a website owner, some important questions to ask yourself include:  How will refunds work?  Do you have an order cancellation policy?  What occurs if there is a dispute between you and a customer?  These are all questions that a website owner should have in mind when creating their Terms of Service.  Terms of Service should essentially cover how a website operates and how a user or customer should expect to solve any issues that might come up.


  • Do Remember That Communication Is Key – You’ve heard this in relationships but this applies to your website also.  Your Terms of Service and Privacy Policy should let users know how they can communicate with your website.  They might have questions about your collection of their personal information or they might wish to file a Copyright Takedown Notice.  Regardless of the reasons, having an email or a telephone number where users may contact you will ensure that you keep the lines of communications open with your customers and users.


  • Do Disclose Everything – Disclose, disclose, disclose! This point cannot be stressed enough.  While most of your website will be used to optimize sales or to attract users, the Terms of Service and Privacy Policy should disclose all the rest of the details.  Try to explain how everything works on your website in plain English.  Don’t try to use excessive legal jargon or confusing terms. Don’t try to pull a fast one on your customers and hide random provisions in Terms of Service or Privacy Policy, thinking that they’ll never notice.  Nothing will alienate customers more quickly than a shady website quietly hiding restrictive provisions in their TOS.  As your mother always said “honesty is the best policy.


  • Don’t Copy A TOS Template Or Use A TOS Generator – It’s important not to copy a TOS template or use a TOS generator.  Although a template or generator may be a great starting point in crafting your Terms of Service or Privacy Policy, it really won’t cover the specific needs of your website.  Like you, your website is unique. Copying only gets you so far and won’t always reflect the realities of how your website operates.  It is important to understand how your website operates and what provisions you’ll need to protect yourself, otherwise when something bad happens you’ll be in above your head.


  • Don’t Lie About What User Information You Collect Or How You Use Your User’s Information – Honesty truly is the best policy.  If you sell a user’s information to third parties, you should let them know.  If you collect information about a user’s behavior through clear gifs or cookies, you should let the user know.  Privacy Policies are supposed to let users know what, why, how, and for what purposes their personally identifiable information is collected.  Lying to your users is not only a bad business practice, it could be against the law.  Nothing will land you in hot water faster with the FTC or other government entities than misusing personal information of your users.


  • Don’t Hide Restrictive Provisions In Your TOS or PP – If you have a stringent return policy or no return policy at all you should let your customers know up front.  You shouldn’t hide random restrictive provisions in the sixth page of your Terms of Service.  Not only will that leave you with unhappy customers but those provisions might not be enforceable.  Courts are generally very hesitant to enforce provisions that are buried deep within a contract that few people ever read.  As stated earlier open disclosure is the best policy.

If you have any other questions about Terms of Service or Privacy Policies please do not hesitate to contact us.  At Kelly / Warner we are Terms of Service and Privacy Policy experts and we can help draft Terms of Service and Privacy Policies that protect your websites and assets.  We have years of experience and we can put that experience to use to help you with your legal needs.

 DISCLAIMER: This post is for informational purposes only and is not to be used as legal advice, because of the generality of this blog post, 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.  If you have any questions you should contact us or your attorney for any specific legal advice

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