Are your website terms of service enforceable?

May 14, 2015 5:00:13 AM

When a user visits a website or uses the services provided by a website, that visit or use if typically governed by a set of website legal agreements, one of which is commonly referred to as a “Terms of Service.” Since these agreements defy the conventional manner in which contracts presented and accepted, the enforceability of these contracts is often misunderstood and challenged in courts.

Terms of Service Defined

Terms of Service are terms and conditions to which a user must first consent to prior to the use or purchase of a site’s service (i.e. purchase of goods, access to a web app, or access to a membership/registration based site). Upon proper acceptance by the user, the Terms of Service become a legally binding contract. Proper presentation and acceptance, though, is one of the keys to enforceability.

Terms of Service

As a website owner, you can present your Terms of Use / Terms of Service for acceptance either through “browsewrap agreements” or “clickwrap agreements.” Browsewrap agreements are website legal agreements that do not require the website user to perform and affirmative act of consent such as clicking an “I Agree” button; rather, browsewrap agreements typically employ notice on a website that conditions the use of the website on compliance with certain website legal agreements. Clickwrap agreements, on the other hand, are website legal agreements which must first be agreed upon by the user before he can enjoy the site’s services by, for example, clicking an “I Agree” button (among other things). Clickwraps are presented to users in a number of different ways (some better / more enforceable than others).

How to Determine Whether or Not Your Terms of Service are Enforceable

If your Terms of Service are unenforceable – they are essentially useless. There are established standards for what makes a contract enforceable based on what the contract actually says – that is not covered here. In the context of a Terms of Service, it really boils down to how those website legal agreements are presented to the user for review and acceptance. A few tips:

  1. There must be sufficient notification to the website user that the Terms of Service exist. Unless a user knows that your Terms of Service exist, there is no way a user can accept them. Burying a website legal agreement in the footer of a website has been found by courts, again and again, to be an insufficient way to give a user notice that the agreements exists. In the context of a clickwrap agreement, sometimes a simple link and an “I agree” button is not enough either. Not only must the user know that the Terms of Service exist, but they also must have actual or constructive notice that use of the website is subject to the Terms of Service.
  2. The user’s acceptance to the Terms of Service must be clear. In clickwrap agreements, acceptance of your site’s Terms of Use can generally be manifested via the user clicking a button or checking a box. In browsewrap agreements, on the other hand, implied consent may be given, such that upon use of the site, the user has manifested its acceptance of the Terms of Service. Meeting the burden of facilitating, and proving, acceptance can be difficult, though.
  3. Keep good records. Tracking a Terms of Service is not as easy as keeping records of written contracts in a file drawer. Make sure you keep track of version, dates, and acceptance data.

The enforceability of your Term of Service plays a significant role in the conduct of your business. PactSafe is designed to help you ensure that your Terms of Service and other website legal agreements are enforceable.

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Brian Powers

Written by Brian Powers

PactSafe CEO & Founder

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