How to Draft a Terms of Service for a Consumer App

By Justin Sha

So You Want to Draft a Terms of Service for a Consumer App

Imagine this: You’re a startup with a Consumer App, or you are a lawyer representing a growing B2C company. The product has changed, the user base has grown, and you need a Terms of Service that accurately describes what the company does today. In this article, Justin Sha explains what the Terms of Service are and recommends steps that a Consumer App company can take in drafting one in a way that’s efficient and systematic.

In 2026, Justin Sha was asked to update the Terms of Service for a friend’s Consumer App. Growing companies of this type may have tens or even hundreds of thousands of users, and although they know that they don’t have the right legal documents, they don’t know the right lawyers and/or are willing to take the risk. It’s an information asymmetry issue. The company doesn’t want to spend (what they think is and which may be for them) all this money for a lawyer who they won’t even know is good. Meanwhile, the lawyer does not know how much product knowledge he will need to learn (and how well put together the company is) and additional legal research he may need to do, to produce a set of documents that satisfies his professional obligations. The company hates the hourly rate, while the lawyer cannot provide a quote without more information with information acquisition itself costing a lot of, potentially sunk, cost.

(Perhaps, this calls for an article later on best practices and tips in scoping projects and reducing client costs from the lawyer’s perspective.)

To draft a Terms of Service, Justin Sha recommends a structured approach that is both planned/disciplined and flexible. The drafter should create an initial framework for what legal documents are needed (including the Terms) and what product information gathering is required, create a checklist of relevant likely default provisions, reconsider the aforementioned again after reviewing and comparing the provisions of the Terms of comparator companies, and only then draft and research in a disciplined manner according to the checklist while also still being flexible and modifying the structure as necessary. Lock the substantive stuff in, and make things sound good later.

To keep this grounded in practical recommendations (and avoid vague, incomplete, and/or ivory-tower-esque hypotheticals), this Sha.Law Practice Note will use Social Dating Apps as our example Consumer App. Let’s get started!

Terms of Service – What Are They?

Simply put, the Terms of Service are the contract governing the legal relationship between the company providing the Consumer App and the individual consumer using it. Depending on the company or product area, this basic contract could also be called the Terms of Use, Terms and Conditions, or a User Agreement. At a high level, the document will include all key contractual provisions, such as access, accounts, rights, permissions, payments, User Content, restrictions, enforcement, termination, risk, and disputes, as well as specialized terms based on the actual product.

The Terms are one part of the legal ecosystem between you and your users. They work in conjunction with your product features and the other legal documents, policies, and practices.

Remember that the Terms of Service Is a Contract (Which Is Subject to Contract Law)

Before thinking about all the protections you might want to put into the Terms, remember what you are drafting: a contract. Contract law principles matter, especially when it comes to a Consumer App that you are offering to the public on a “take it or leave it” basis (where they have no ability to negotiate the contract terms). In general, and particularly in a take-it-or-leave-it consumer contract, ambiguous terms may be construed against the drafter. Provisions also need to be in line with current law.

Did the User Actually Agree?

Standard contract law principles – for any contract to be valid, each party must agree. For an online Consumer App agreement drafted entirely by one party (the company) to be enforceable, the user (i.e., consumer with zero bargaining power) generally needs both (a) reasonable notice of the Terms and (b) to take an action that manifests assent to those contractual provisions.

Two federal Ninth Circuit cases evidence how the design of the product features and product interface is just as important as having a good contract. In 2022, the Ninth Circuit said that clicking “Continue” was not enough to create an agreement, while in 2024, tapping “Play” was. Why?

The Product Interface Matters

The difference wasn’t the word or button, but the overall context of information that the user was shown prior to clicking the button. Did the design interface clearly connect the user’s action with agreement to applicable Terms?

Berman v. Freedom Financial Network, 30 F.4th 849 (9th Cir. 2022): The Ninth Circuit held that, absent actual knowledge, an online agreement based on inquiry notice requires (a) reasonably conspicuous notice and (b) an action that unambiguously manifests assent. There, the “Continue” button failed because the interface did not clearly tell users that clicking it meant agreeing to the Terms & Conditions.
Keebaugh v. Warner Bros. Entertainment Inc., 100 F.4th 1005 (9th Cir. 2024): The mobile game Game of Thrones: Conquest displayed language directly beneath the “Play” button telling users that tapping Play meant agreement to the Terms. The Ninth Circuit found sufficiently conspicuous notice and a clear manifestation of assent, and held that a valid arbitration agreement existed as to the nonminor plaintiffs.

The practical takeaway is that contract formation is also a product design question. You can draft excellent Terms and still have a problem if the interface through which users supposedly agree to them does not provide adequate notice or clearly connect the user’s action with assent.

Why You Can’t Just Add Any Provision That Sounds Protective

Contract provisions are not automatically enforceable. You can’t just include contract terms that “sound good.” Courts (and arbitrators) will apply applicable legal rules based on case law and the unique set of facts relevant to your case. Accordingly, based on case law, a court/arbitrator could even rule against you if your contract terms seem grossly unfair (overly “unconscionable”) or there is some other reason to find against enforcing the contract you drafted.

“Unconscionability” has both procedural and substantive components. Procedural unconscionability is about how the agreement was formed, including any oppression or surprise arising from the unequal bargaining power between you and the consumer. Substantive unconscionability is about the fairness of the actual terms. California applies a sliding scale: the more substantively oppressive a provision is, the less procedural unconscionability is required, and vice versa. So, if your terms are high in both substantive and procedural unconscionability when taken as a whole, let’s just say that won’t look good to a judge (especially one that is elected by the voters).

In addition, the Terms cannot waive every statutory right. For example, California will not enforce a predispute provision waiving the right to seek public injunctive relief in every forum. (McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017).)

In short, you don’t want to be in the situation where, even in spite of your severability clause, a court finds your entire contract to be invalid or unenforceable.

How to Draft the Terms of Service

So we have the basic principles down. How should we start drafting our Terms of Service? Here are the boiled down steps:

Understand the product
Build a baseline checklist of common provisions for a Terms of Service
Research relevant competitors and market leaders to identify additional issues (issue spotting strategy)
Gather the facts necessary to answer those issues and always revise your outline as you learn more

Understand your Product

Hinge is a dating app. But what does that mean? Well, as a Social Dating App, Hinge lets you create a dating profile, upload pictures, and match with other users. You are shown other users based on your selected location radius, and you get to see their profile information (including “sensitive information” like sexual orientation). If you match, then you might start chatting! In addition, you could purchase a subscription plan to access premium-only features, and you might eventually cancel that subscription plan at any time. There are laws associated with all of this, such as the need to maintain an accurate Privacy Policy or include “cancellation rights” for certain states (e.g., California Civil Code §§ 1694.1, 1694.2 [a buyer has the right to cancel a dating service contract or offer until midnight of the third business day after the day they sign the agreement]).

Create Your Checklist

Once you understand the product, build a baseline checklist of the provisions you are likely to need. For a Consumer App, that usually means eligibility of use, accounts, intellectual property, termination, disclaimers, limitation of liability, indemnification, dispute resolution, governing law, and other standard contract provisions, including those relating to payments.

At this stage, the goal is issue spotting. Search, research, and use checklists from prior agreements, practitioner resources, and overviews provided by generative AI (aggregators) like Gemini, ChatGPT, or Claude. Remember that your checklist tells you what questions to ask, not what those answers should be.

Refine Your Checklist; Review Comparator Terms

Next, review the Terms of companies operating in the same product area. For a Social Dating App, that might include the big players Hinge, Tinder, Bumble, Grindr, or other more specialized platforms that could be more similar to your specific Social Dating App. “Comparator Terms” can reveal issues you missed. Although Comparator Terms may make sense for a much larger company, a different business model, or a different product, they may not always make sense yours. Use them as an issue spotting device, not as a template.

Gather the Facts and Revise as You Go

Your checklist and comparator review should generate factual questions. For example, how is location information used? For Hinge, a local area of a city is described, whereas for Grindr, you can see specific distances between you and other users. What happens when a user deletes their account after a report is made by another user, but before the moderation process is completed? What if they had purchased a subscription plan? Get these answers from business and technical leads who actually know the product. That could be the product team, it could be an engineer, it might be the founder. Then revise your outline as needed. The goal is neither to preserve your original checklist nor to modify it endlessly. The goal is to end with Terms that accurately reflect the product and enable you to provide the desired product and services offering.

Draft the Actual Legal Relationship

Once you understand the product, ask what rights, permissions, obligations, and protections each side needs.

Rights and Permissions Run in Both Directions

Typically, the Terms give the user a limited right to access and use the Consumer App, while the user gives some rights to the company. For example, the company may not want to own the user’s photograph, it will need permissions to do basic things with that photograph. This product-specific analysis should be applied to the User Content license generally.

Restrictions Should Also Follow the Product

Now ask what users should not be allowed to do. For example, you may not want anyone scraping profiles, operating bots, reverse engineering the software, circumventing security controls, abusing APIs, or using platform data to train AI models. But don’t include a restriction simply because another company has it. Instead, identify what conduct actually creates a problem for your product, technology, users, or business model.

Community Guidelines

In addition, you will want to incorporate Community Guidelines into your Terms. Community Guidelines set more detailed rules for user conduct, content, and interactions on the platform. They are usually kept in a separate document because those rules are more detailed and may need to change more frequently, but incorporating them into the Terms makes violations of the Guidelines a contractual basis for moderation or enforcement.

Give the Company the Authority It Needs

The Terms should establish what the company may do when users violate the rules.

For a Social Dating App, that may include removing content, investigating reports, restricting features, suspending accounts, terminating users, preventing ban evasion, and offering an appeal or review process. This is where the Terms and Community Guidelines interact. The Guidelines tell users what general conduct is prohibited, with additional specifics, while the Terms give you contractual authority to enforce those rules.

Plan for Changes in the Company-User Relationship

Users upload content, subscribe, cancel, block, delete, and leave. Companies remove content, suspend users, terminate accounts, and change features. These are often product decisions, and the Terms should accurately reflect as well as advise upon those practices in the final document.

Provisions re: Money

Consumer Apps need to make money. If your Social Dating App offers subscription purchases, then you need to make sure your Terms clearly outline not only the general arrangement for the use of the app, but also what they will get or not get when they spend money for additional features under a subscription plan.

For subscription purchases, you also will need to advise users about what they will not necessarily know. (This means you also need to understand how those purchases are made, whether through the Apple App Store, Google Play Store, or other channels.) This matters because account deletion and subscription cancellation are not necessarily the same thing. Deleting an account may not necessarily cancel an Apple or Google app store subscription. Canceling may stop the next renewal, while leaving Premium active through the end of the paid period. Refund procedures may also depend on who processed the payment.

In short, important nuances need to be made clear to reduce the incidence of user disputes, such as a user’s claim of misleading provisions or a claim based on California’s Unfair Competition Law alleging an unlawful, unfair, or fraudulent business practice.

Provisions re: Dispute Resolution

Disputes will happen, and you want to make sure that what you want to happen actually happens, in accordance with and as reflected by the Terms. Risk allocation should be deliberate, not maximal. This means:

Warranty Disclaimers
Assumption of Risk
Limitation of Liability
Indemnification
Arbitration Agreement
Class Action Waiver / Class and Representative Action Waiver
Notice Requirements, Governing Law, Forum / Venue
Attorneys’ Fees and Costs
Severability
Etc.

Check the Laws Specific to the Product

Once you understand the product, identify the laws that create special requirements for that product area. For a Social Dating App, this means various privacy laws, copyright and the DMCA, the TAKE IT DOWN Act, age assurance legislation, online dating safety laws, and other consumer rights specific to this area, such as purchase and cancellation notices and requirements. These laws are often state-specific.

Privacy Laws for Consumer Apps

A dating app may collect location, photos, messages, and sensitive category information, like sexual orientation. Applicable privacy laws may require specific disclosures, rights mechanisms, and operational practices outside the Terms themselves. For example, California requires covered businesses to disclose privacy practices and consumer rights in their privacy policies. The Terms should be drafted in connection with the Privacy Policy as well.

Safety Laws for Social Dating Apps

Some states may also have additional rules. For example, Colorado requires covered online dating services to maintain a safety policy addressing subjects such as prohibited conduct, background screening, identity and age verification, reporting, and other safety measures, and requires a link to that policy in the dating service contract. C.R.S. § 6-1-731.5.

Age Assurance Laws for Social Dating Apps

International jurisdictions may also impose heightened age assurance requirements. For example, the UK’s Online Safety Act requires highly effective age assurance in certain circumstances for covered online services. In Australia, covered age-restricted social media platforms must take reasonable steps to prevent users under 16 from holding accounts, while dating services such as Tinder, Hinge, and OkCupid continue to enforce an 18+ minimum. These requirements can affect how Social Dating Apps design onboarding and age assurance processes, including whether to partner with a third-party vendor to verify users’ ages. This way, the Social Dating App can lower their data breach risks, as it will not need to receive sensitive information like a user’s driver’s license.

Copyright and the DMCA

Social Dating Apps allow users to upload photos and other content, and users will sometimes upload copyrighted material that they do not own or have permission to use. Accordingly, companies should consider the safe-harbor framework under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512. For qualifying online service providers, this includes designating and registering a copyright agent, publishing the agent’s required contact information, maintaining a notice-and-takedown process, responding appropriately to valid infringement notices and counter-notices, and adopting and reasonably implementing a repeat-infringer policy. Hinge, Grindr, and Whappz all address these issues directly in their Terms of Service, including by providing the information required for a copyright owner to submit a DMCA takedown notice.

Purchase and Cancellation Rights for Social Dating Apps

Some states provide for additional consumer rights, including notice and cancellation, for subscription-based purchases made on Social Dating Apps. For example, California gives buyers of certain dating service contracts a right to cancel within three business days and requires specific contract disclosures.

There are even some weird laws like in New York, where the Terms of Social Dating Apps (as social referral service contracts) must give purchasers the unilateral right to place their membership on hold for up to one year, with a longer hold of up to two years by mutual agreement. N.Y. Gen. Bus. Law § 394-c(5-a). Kind of weird in the context of a modern Social Dating App, right?

AI and Synthetic Content

AI creates another set of product-specific questions. Does the Consumer App use AI for moderation, recommendations, matching, age assurance, or other features? Can users upload AI-generated images, create fake personas or deepfakes, or use profiles and platform data to train outside AI systems? The Terms and Community Guidelines should address the AI uses that the product actually permits or prohibits.

TAKE IT DOWN Act for Consumer Apps

Covered platforms must provide a process for requesting removal of qualifying nonconsensual intimate images and generally remove them, along with known identical copies, within 48 hours after a valid request. For Social Dating Apps, AI-generated content can also create specific legal issues. Under federal law, the TAKE IT DOWN Act applies to certain AI-generated or digitally altered nonconsensual intimate images.

Separately, the California legislature enacted SB 1276, which expanded state child sexual exploitation law to cover certain digitally altered or AI-generated sexual depictions of minors. As discussed, compliance will require not only appropriate contract language in the Terms, but also proper design of moderation, reporting, and removal processes.

When Jurisdiction-Specific Laws Conflict

When a Social Dating App is available across different states and countries, those jurisdictions will invariably impose different requirements on the same Consumer App, and sometimes those requirements may conflict. Purchase and cancellation rights are a good example. California requires certain cancellation notices to appear prominently and in a specified place in the agreement, while other states may impose their own placement or disclosure requirements. The practical question then becomes how to account for all of those requirements while still maintaining one standard set of Terms for users across jurisdictions. If multiple states require different language to appear at the top of the same document, for example, strict compliance with every requirement may not be possible within one uniform agreement. A company may therefore need to decide whether to use jurisdiction-specific terms or notices, or instead maintain one national agreement while accepting some risk of technical noncompliance with particular state-law requirements. Large dating apps do not always solve this by providing a completely separate agreement for every jurisdiction.

Take a look at what Grindr does for state cancellation rights (scroll all the way at the bottom): Grindr’s Terms of Service. It’s a doozy!

Takeaway: Draft the Terms Around the Product

A good Terms of Service starts with a framework, but the final document should follow the product. Build your checklist, use comparator Terms to spot issues, gather the facts from the people who actually understand how the product works, research the applicable law, and revise as you learn more.

The recurring lesson is simple: many apparent drafting questions are really product questions. The Terms should ultimately reflect the product’s actual features, user relationships, revenue model, enforcement practices, and applicable law.

Lock the substance in first. Make it sound good later. And if you get stuck, sometimes an unresolved Terms provision is not really a drafting problem. It is an unresolved product decision.