How to Draft the Terms of Use for an eCommerce Platform

Here are some important sample clauses to consider including in the Terms of Use of an eCommerce platform to maximize liability protection. 

Title	Purpose	Sample Language
Your Acceptance	To explain to users that the Terms of Use are legally binding whenever they access the platform even if the users are simply browsing	These Terms of Use (the “Terms”) are legally binding on you when you visit www.____________.com (the “Service”) or access ____________ mobile application (the “App”) even if you do not register an account or make a purchase. The Service and the App are collectively referred to herein as the “Service.” By accessing the Service, you indicate your acceptance of these Terms, as well as the Privacy Policy available at www.___________/_______. If you disagree with any provision of the aforementioned documents, you must exit the Service.
Neutral Venue	The law shields neutral eCommerce service owners from liability for materials/transactions of the service users, if: (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material; (4) no copy of the material made by the service provider is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients; and (5) the material is transmitted without modification of its content. 17 U.S. Code § 512. In other words, service owners are legally protected if their role is simply to provide a neutral platform for users to transact. The Neutral Venue clause makes it clear that the owner is neutral and is, therefore, entitled to full liability protection.	Our Service is a neutral venue. We have no control over user conduct and transactions. We disclaim all liability arising out of users’ activities or related to information provided to or by the Service users
IP Ownership		We own all intellectual property rights to the Service. Service features, look and feel, design, registered and unregistered trademarks are protected by [Country] and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
(DMCA) Takedown Requests	DMCA  basically exempts online service providers (OSP’s) from liability for copyright infringing acts by its users, provided it meets certain conditions (such as being responsive to copyright holders when given notice of infringement on the network). Among the conditions that an OSP must meet to be exempt from liability are: (1) No actual or constructive knowledge of infringing behavior; (2) No financial benefit directly attributable to the infringing activity; (3) When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”	All claims of copyright infringement committed using our Service will be investigated if reported to our designated Copyright Agent via email
Your Content	To outline your policy regarding user-submitted materials such as product reviews, comments, forum posts,  emails, and other content	You represent and warrant that you own or otherwise control all of the rights to the content that you submit. By submitting any content, you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, publish, create derivative works from such co ntent throughout the world in any media.
Disclaimer of Warranty	To explain that the website and its content are provided without any warranties, “as is,” to be utilized at users’ own risk	WE DO NOT WARRANT THAT THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIRMENTS. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. WE DO NOT GUARANTEE THAT ANY CONTENT PROVIDED ON THE SITE IS ACCURATE OR UP-TO-DATE. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT.
Limitation of Liability	To prevent users for suing site owner for “exotic” damages. A variation of this clause can limit liability to the amounts actually received by the Service owner from a complaining user.	IN NO EVENT WILL WE, OUR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY SITES LINKED TO IT, ANY CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DEATH, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
Product Descriptions; Mispriced Merchandise		We attempt to be as accurate as possible. However, we do not warrant that product descriptions or other content of this Service is accurate, complete, reliable, current, or error-free. If a product offered is not as described, your sole remedy is to return it in unused condition. Every effort has been made to display as accurately as possible the colors of our products that appear on our Service. However, the actual colors seen on screen will depend on monitor settings. We cannot guarantee color accuracy. Product images are for representational purposes only. Despite our best efforts, a small number of products offered through our Service may be mispriced. If the correct price of an item sold is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
Back-Ordered/Discontinued Items		Customer will be notified of items that are not available. If necessary, items can be shipped in multiple packages as they become available. Dates are generally given on backordered items but these are only estimates that do not necessarily mean the item will arrive on or around that time frame. Backordered items are shipping immediately when they arrive and they will be charged when shipped.
Payment/Taxes/Order Acceptance/Shipping/Risk of Loss		Customer's receipt of an electronic or other form of order confirmation does not signify our acceptance of the order, nor does it constitute a confirmation to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. Your order will be deemed accepted by us upon our delivery of products to the shipping carrier.  All payments must be made by Visa, Mastercard, Discover, American Express or through PayPal. Customer agrees to pay all fees and charges incurred in connection with purchases (including any applicable taxes). Unless you notify us of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If we do not receive payment from your credit card issuer, you agree to pay all amounts due upon demand. You are responsible for paying any governmental taxes imposed on your purchases, including, but not limited to, sales, use or value-added taxes. The risk of loss and title for items pass to you upon our delivery to the carrier. Shipping times are estimates. Please refer to our Shipping & Returns policy for more details.
Refunds/Returns/Chargebacks	Outline your Refund Policy. If you don't have one, state that all sales are final and no refunds will be issued.
Terms for Digital Products	To list special provisions that apply to digital products only	Any subscription to software under these Terms is for the time period or term listed at time of checkout. You may not: (1) re-sell, rent or lease a Digital Product or any part of it; (2) copy any part of a Digital Product, except where specifically indicated otherwise or for back-up purposes; (3) reverse engineer, decompile or disassemble a Digital Product or the software through which it is delivered, or convert it into any other format or medium;  (4) use more copies of a Digital Product, or deploy a Digital Product on more devices or at more sites, than are authorized at checkout, or (5) sub-license the Digital Products.
Third Party Sites	To explain that you are not liable for problems caused by third party services you use to support your platform (e.g. PayPal). Note that  FTC requires “clear and conspicuous” affiliate disclosures	The Service may contain links to third party websites that are not owned or controlled by this Service. This Service retains no authority or control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, the Service will not and cannot censor or edit the content of any third-party site. You acknowledge that we will not be liable for any and all claims, demands and damages of any kind and nature arising out of or in any way connected from any and all potential liabilities arising from the use of any third-party website. Third party networks have their own terms of use, and you must comply with any terms and conditions provided by any third party network.
User Obligations; Prohibited Conduct	To explain what users can and cannot do on your platform	By accessing the Service, you represent, warrant and agree that: a.      _______________ b.      _______________ c.       _______________ You cannot: a.      _______________ b.      _______________ c.       _______________
Electronic Communication	To explain that electronic communications shall be deemed as legally binding as paper ones.	You agree that all notices or other communications regarding your account and/or your use of the Service ("Communications") may be provided to you   electronically and you agree to receive all Communications from us in electronic form. All electronic Communications will be considered just as   legally binding as Communications in paper form.
Indemnification	To require users to  pay for damages caused by the breach of the Terms (e.g. users uploading others’ copyrighted materials to your site)	You agree to defend, indemnify and hold harmless us, our affiliates and licensors, officers, directors, employees, contractors, agents from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) resulting from your violation of these Terms or your use of the Service.
Termination	To be able to easily get rid of problematic users	We may terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms
Linking		You may link to our Service in a way that is legal, fair and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
Governing Law	To ensure you don’t get sued in a remote jurisdiction after a customer there buys your product. Consumer laws of many countries (particularly, in Europe) limit merchants’ ability to require consumers to litigate or arbitrate in foreign jurisdictions.	By accessing the Service, you agree that any legal matter that may arise between you and us relating to the Service shall be governed by the laws of [State/Province/Country].
(Documents-Only) Arbitration	Arbitration is usually quicker, cheaper, confidential, less complicated and more informal than trial. This sample clause provides for a confidential “documents only” hearing, so that it’s not necessary for parties to travel to resolve disputes. Important note to software companies and developers: European pro-consumer countries limit arbitration clauses in consumer contracts. Exercise caution. Read Software Licensing Issues for US Businesses in Europe and Japan to get an idea of potentially problematic software/mobile application licensing clauses in foreign jurisdictions.	Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules  and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Severability		Should any part of these Terms be rendered or declared invalid by an appropriate authority, such invalidation of such part or portion of these Terms should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
Modifications	To explain that these Terms may be updated without notice every once in a while, and the updates will be legally binding	We update these Terms every once in a while as we deem appropriate, without notifying you. We then post the changes on this page. Please check this page   from time to time to take notice of any changes we made, as they are binding on you. Your continued use of the Service following the posting of revised Terms of Use constitutes your acceptance of the changes.
General	Assignment, Waiver, Relationship of the Parties, etc.	You cannot assign your obligations under these Terms without our prior consent. Enforcement of these Terms is solely in our discretion, and failure to enforce the Terms in some instances does not constitute a waiver of our right to enforce them in other instances. These Terms do not confer any rights upon any third party. You and us are independently contracting parties. We reserve the right to modify the Service and its features at any time without prior notice.