Terms of service
What are terms of service?
Terms of service (or ToS) are a legal agreement between a service provider and a user of the service. The service may be a website, app, or other software. Generally, the user must agree to ToS before they can access the service. Primarily, ToS protects the service provider and the service from abuse or theft by users. But these terms can also include clauses that secure a user’s permission for the service provider to engage in other activities.
Other names for this type of agreement are “terms of use” and “terms and conditions.” The user’s agreement to terms of service (ToS) can be explicit—like checking an “I agree to…” box—or implicit—like a “by using this website you agree to…” statement on a website. ToS are legally binding for both the service provider and the user. However, these terms are often long and written in dense, wordy legal jargon; in reality, users rarely read the terms before agreeing.
What are terms of service for?
Terms of service appear in lots of situations, like installing software or an app, subscribing to a service, or using a website. Online, ToS are common in places where a user and the website interact (such as e-commerce) or anything that involves a secure account (such as banking or social media).
The terms of service detail what services are being provided, as well as rules that apply to the user. They specify what the user can and cannot do while using a service (e.g. define unacceptable behavior on social media). ToS usually include language that protects the service provider’s intellectual property or copyrighted material (like logos and content) from wrongful use or theft by a user. If applicable, payment terms like subscription fees, automatic renewals, and cancellation policies are also covered.
Terms of service also describe protections the service provider reserves for themselves. A service provider may note the circumstances under which they can suspend or terminate an account. Ideally this would happen only if a user breaches the ToS, but some companies or websites reserve the right to suspend or terminate for any reason. Another common protection is liability limitation. In this case the agreement states a provider can’t be held liable if there’s a problem with the content or service, or if the content is wrong, or used wrongly by the user.
If the provider intends to use material generated by the user for purposes other than providing the promised service, this intention will also be declared in the ToS. This protects the provider against being sued by a user who doesn’t like how their data or content is used.
How are terms of service different from a privacy policy?
Depending on the nature of the service, a privacy policy may be required by law. Its purpose is to inform and protect the user regarding the legal handling of their data. In most cases, however, there’s no legal requirement for terms of service. Adoption is up to the provider and focuses on protecting the provider.
A privacy policy generally covers what data may be collected, how (and how long) it’s stored, and how the service provider can use the data—both as part of providing the service and for their own purposes. A privacy policy will also cover who the provider can share the collected data with. Cookie consent—where a user can grant or deny certain data collection privileges to the service provider—is linked with (but not the same as) a privacy policy.
Terms of service are more general, and cover more areas than just data handling. If data handling is involved in the service, the ToS may include content usually found in a privacy policy, or may just refer to a separate privacy policy document.
To agree or not agree: user choices on terms of service
Generally, if a person wants to use a service online, they have to agree to all of the provider’s terms of service. There’s no partial acceptance option. If you agree, you get to use the service; if you don’t agree, you can’t use the service. The one-sided nature of this arrangement can be frustrating when it’s a service you really need, like online banking.
Agreeing to terms of service can be active or passive. Actively agreeing means you have to check a box or click a button to declare you’ve read and agree with the ToS. Passive agreement happens when the provider allows access to the service and simply posts the ToS, often in the footer of the webpage. It’s up to you to locate and read—acceptance is implied simply by using the service or website.
A third approach is a banner or popup that says “by using our site, you agree to our terms.” This doesn’t require an explicit “yes I agree” action, but is more noticeable than the fully passive approach of doing nothing other than posting the terms somewhere on the website.
When terms of service change
The service provider can update their terms of service whenever they need to. Additionally, the provider is allowed to simply post the revised terms without announcing the changes. This is covered by including a clause in the original ToS that states future changes will be posted. This approach puts the burden of staying informed with the user. The only way you’ll know to check for updates is if you read the original ToS.
When changes are significant, the provider may post a notice on their website, or send an email or a message to your account. You’ll sometimes need to agree to the updated terms to continue using the service or site. This sort of notice may be supplied prior to or after the effective date of the changes.
What laws apply to terms of service?
Providers are not required to have terms of service. However, if a provider does adopt ToS, those terms should declare what regulatory body’s laws apply to the service. In the case of a website, this is usually determined based on where the website is registered and/or operates. These claims may be preempted by prevailing regulations. For instance, if the service is provided in the EU, GDPR will apply regardless of what the ToS says.
What if someone breaches the terms of service?
If the provider breaches their own terms, the user may have the right to sue, but not always. Sometimes the terms of service declare that the user agrees to settle disputes with arbitration instead of suing. Additionally, the terms may set time limits on pursuing a claim against the provider.
If the user breaches the ToS set by the provider, the provider can terminate services. This might mean suspending or terminating a user’s account, or blocking the user from accessing the service. If theft of content is involved, the provider can sue the user for damages.
