Website Terms and Conditions are an important tool for website owners and operators in order to create essential legal protections and limit liability. Frequently, website Terms and Conditions, coupled with the Privacy Policy, are the only legal documents used to establish the contractual relationship between website operators and their respective end-users. Given this vital role, it is important that website operators ensure that their website Terms and Conditions are fully enforceable.
To make website Terms and Conditions easier to enforce in a court of law, website operators must pay close attention to:
- how end-users accept the Terms and Conditions;
- the prominence with which the Terms and Conditions are displayed to end-users; and
- the extent to which unusual or important provisions are highlighted in the Terms and Conditions.
How Do I Best Ensure that My Website Terms and Conditions Are Enforceable?
There are two methods that website operators typically rely on in order to demonstrate that end-users have accepted their website Terms and Conditions: (1) the “browse-wrap” method; and (2) the “click-wrap” method. Browse-wrap agreements rely on the presumption that the end-user has accepted the Terms and Conditions merely by accessing the subject website. In contrast, click-wrap agreements require that the end-user check a box or take some other action to manifest acceptance of the Terms and Conditions. Courts are far more likely to uphold click-wrap agreements than browse-wrap agreements. Therefore, it is recommended that website operators always utilize the click-wrap method.
Further, there are a few factors that can aid in the enforceability of click-wrap agreement terms. First, the website should prominently display the words, “Terms and Conditions” (hyperlinked to such terms) at the bottom of every web page. Most importantly, end-users should represent that they have read and agreed to the website Terms and Conditions when they first access the website or as part of the site registration process. Ideally, end-users should make their representations by checking a box and clicking “submit.” In addition, within the Terms and Conditions themselves, any unusual or onerous terms should be highlighted to call end-user attention to them.
Website Terms and Conditions Are Too Important to Leave to Risk
Website Terms and Conditions are often the best means for website operators to protect their intellectual property, disclaim any applicable warranties, and limit their liability. However, if a court of law or regulator deems that a set of Terms and Conditions are unenforceable, then the website operator would lose vital legal protections and limitations on liability. Given the crucial role that website Terms and Conditions play, it is highly recommended that website operators retain competent legal counsel to ensure that their Terms are fully enforceable.
The attorneys at Klein Moynihan Turco have years of experience helping businesses effectively draft website Terms and Conditions and Privacy Policies.
If you need assistance with drafting or updating the Terms and Conditions applicable to your online operations, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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This post was originally published on August 13, 2018 and updated on February 2, 2022.
Photo by Igor Miske on Unsplash
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