The First clause of the SAMPLE TERMS OF SERVICE I posted last week is the “Introductory Clause” and it contains one essential element – naming the parties. It also includes another element that is useful, especially in this sort of consumer contract, some descriptions of the Terms’ scope. Remember these terms are a draft, and aren’t offered as legal documents or advice on how you should proceed, they exist to help inform you about how Terms of Service work.
THE SAMPLE INTRODUCTORY CLAUSE
“These Terms are the rules that tell you, as a “User”, what you need to do to access [NAME OF WEBSITE], how we are governed, and what the relationship is between us and our Users. When we use the words “we”, “us” and “our” we mean [NAME OF WEBSITE] (the “Website”), which also includes its owners, employees, administrators, mediators, and any related services it provides. The Terms exist so that you and other users can be safe on and enjoy our Website, to keep the Website functional, and to meet our legal requirements.”
NOTES AND EXPLANATIONS
NAMING THE PARTIES: Every contract needs to indicate who it’s between and who it applies to. It should be obvious, and of course this is the essential function of the Introductory Clause. These Terms of Service though, are a “click-through” contract between an unknown user and the site, so they can only properly name the site itself. One could have users sign the Terms of Service and then insert their names or offer another method of affirmative acceptance, and it would be a good idea. It’s not practical here though, and we see contracts like this, where the party purchasing or using the product or service isn’t explicitly named all the time. Instead the user is named through a description and defined with a placeholder. This place holder, like the shortened name of the website, is defined, and that definition noted with a parenthetical. It is then capitalized throughout the document to show that the word is used to mean something specific—here the “User” and the “Website”.
Note that the definition of “Website” here isn’t just the site itself, or whatever business entity is involved, it’s also the employees and others involved with running and funding the site. This aims to create a measure of protection for those individuals by making a contract that applies to potential claims against them as well as against the site itself. This cannot always stop such claims and doesn’t stop legal threats, but it helps limit them and it allows the site to better take over any defense.
There are situations where individuals are legitimately sued for the activity on or of the website the work or volunteer for, such as Nintendo’s ongoing (as of Summer 2024) suit against a moderator on a gaming subreddit … but the lawsuit is only tangentially about the the moderator’s actions on Reddit. Nintendo is suing him largely for his business of selling emulation hardware, allegedly loaded with pirated games, and for using his subreddit as a platform to promote this business. As the owner, employee, or volunteer of a website you can’t entirely protect yourself from being sued personally, because anyone can sue anyone for anything … but making sure that any agreement with the site also covers you provides a layer of protection.
For owner/operators that protection will also depend on how distinct the site is from you as an individual. If one’s website is a sole proprietorship (sometimes called a “sole trader”) or a “DBA” (a private individual “Doing Business As”) there is little real protection. However, proper corporate or non-profit structures offer considerable protection to the private individuals who own them, and even a sole proprietorship can protect any employees.
SCOPE AND EXPECTATIONS: The Introductory clause also covers the “scope” of these terms, telling the users what to expect and what the term’s are meant to do. In many contracts the scope would have its own clause, but here, because it, the duties of the parties, and language used are simple, a line here is sufficient.
Scope is important less because it creates duties or offers legal protections, but because it lets the parties know the subject and extent of the contract while and discouraging misunderstandings. In the sample clause it clarifies that to use the website one has to follow the rules in the Terms of Service. An important part of this is that describing the contract at the most general level helps reassure the parties that it’s limited to something they want, and sets the parties’ expectations about the contract. This can also help in court, because it makes it harder for anyone to argue that they didn’t know what the contract was about. This is important in a one-sided consumer contract like these Terms of Service.
These Terms of Service are written in a way to make them as easy to understand as possible, even at the cost of exactitude in some places. They avoid “boilerplate” or legalistic language as much as possible. The terms do this for the same reason that they lay out the scope in the first few sentences, to make them easier for users to understand and so accept. To explain why the website is asking the users to follow certain rules, and to offer something that doesn’t feel adversarial. All of this is an effort to encourage users to commit to following the Terms of Service and to show any court reading them that the site made an effort to have approachable and understandable terms, rather then something that might reasonably confuse an unsophisticated user.
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