Are Website Terms of Service Legally Binding?

Home / Blog / Business Litigation / Are Website Terms of Service Legally Binding?
Are Website Terms of Service Legally Binding?

The terms of service set forth on a company’s website can be legally binding if they meet the elements that create an enforceable contract and are presented to a user for review and acceptance in a way that meets approved standards.

Prior to using a website, users must typically consent to the terms and conditions set forth on the website’s Terms of Service (ToS) page. A contract between the owner of the website and the user is created once the user agrees to those terms and conditions. To be legally binding, the Terms of Service must be presented to users through one of the following methods:

  • Clickwrap agreement — requires the user to click a button that represents their acceptance of the website’s Terms of Service prior to using the site. The courts typically prefer this method since it requires a user to take a specific action to indicate acceptance — i.e., there is both an offer and an acceptance.
  • Browsewrap agreement — a notice displayed on the website that informs the user that their use of the website connotes acceptance of the Terms of Service. While this method may be on its face more user friendly, it is harder for website owners to defend because there is no clear offer and acceptance.

Other factors that courts may take into consideration when determining the legality of ToS agreements include:

  • Notice — users must be given sufficient time to review the ToS agreement without the site “timing out” too quickly. This equates to insufficient notice.
  • Available and conspicuous — the ToS agreement must be obviously displayed to the user and not buried in the site’s footer or other inconspicuous location. If there is a hyperlink to the ToS agreement buried deep in the site, the courts have found this to be insufficient notice to the user that he or she is agreeing to the ToS terms.
  • Clear — using the “reasonable person” standard, it must be made clear to the user that he or she has accepted the ToS agreement.

In addition, the ToS agreement cannot contain a unilateral provision that allows the website owner to make any changes to the agreement without notifying the user.

Williams Commercial Law Group, L.L.P., provides strong legal advocacy for companies involved in business lawsuits. We are known for using our skills, experience, and cutting-edge technology to get great results, whether after trial or through a favorable settlement. Call us today at (602) 256-9400 and schedule an appointment to meet with us about your case.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us, though doing so does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Our description of what we believe to be superior technology and how we win cases reflects our typical approach to litigation, which we believe:  (i) gives us a competitive advantage, and (ii) is responsible for any success we have had. But we do not win every case. Other lawyers may have technology or approaches that they believe gives them an advantage. Also, the results that we have obtained in other cases or that are described in our clients’ testimonials do not guarantee, promise, or predict the outcome of your case, which depends on the law, facts, and evidence specific to it.