Terms of Use

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Under the Information and Technology, Act 2000 (IT Act) read with the Information Technology (Intermediaries Guidelines) Rules, 2011, any person who on behalf of another person receives, stores or transmits any electronic information or data or provides any service including telecom service, internet service, web-hosting service, search engines, online payment sites, online-auction sites, online-market places (collectively intermediaries) is required to publish rules and regulations, privacy policy and user agreement on the Platform to inform the User the terms regarding the usage of the Platform.

The Terms of use are required on every website or application to govern their use and prevent any unauthorized use. The terms of use are in a way are an electronic contract between the website /application owner and their users for access and usage between the service provider and the user and is hence covered under the IT Act and is enforceable against both the user and the service provider. 

FAQs

1. What should be covered under the terms of use?

While what should be covered under the terms of use depends mainly on the services being offered by the websites. However, in addition to those, rule 3(2) of the Information Technology (Intermediaries Guidelines) Rules, 2011 states that the terms of use must necessarily ensure that the service provider informs the user not to host, display, upload, modify, publish, transmit, update or share any information, related to the following:

• belongs to another person and to which the user does not have any right to;
• is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
• harm minors in any way;
• infringes any patent, trademark, copyright, or other proprietary rights;
• violates any law for the time being in force;
• deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
• impersonate another person;
• contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
• threatens the unity, integrity, defense, security, or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offense or is insulting any other nation.

2. Can a service provider terminate the access granted to a user on the basis of violation of the terms of use?

The terms of use are considered as a user agreement under the IT Act that allows the service provider to terminate the access or usage granted to the user. Further, rule 3(5) of the Information Technology (Intermediaries Guidelines) Rules, 2011 states that in case of non-compliance with rules and regulations, user agreement, or privacy policy for access or usage of intermediary computer resource, the service provider shall have the right to immediately terminate the access or usage rights of the users. 

3. How are Terms of Use different from Terms of Service?

A Terms of Use agreement is the same as a Terms and Conditions or a Terms of Service agreement. These agreements have similar clauses, depending on the website, business model, industry, etc., but the name of the agreement can be named either a “Terms of Use” or a “Terms and Conditions.”

4. What should be included in the Terms of use agreement?

Terms of Use agreements include a clause to inform users that the company is not responsible for things such as

• Any malware contracted by using the site
• The content of any third-party websites to which the site links
• The accuracy of any information presented by the site