August 13, 2018
In order to make website Terms and Conditions easier to enforce in a court of law, website operators must pay close attention to the means by which end-users accept those 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?
Protecting Your Company from Liability and Other Exposure
There are two methods that website operators typically rely on in order to demonstrate that end-users have accepted their website Terms and Conditions, namely the “browse-wrap” method and 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. Click-wrap agreements, on the other hand, 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 and, thus, it is recommended that website operators always utilize the click-wrap method. Additionally, there are a few factors that can further aid in the enforceability of click-wrap agreement terms. First, the website Terms and Conditions should be prominently displayed in a link to the Terms located at the bottom every web page. Most importantly, end-users should represent that they have read and agree to the website Terms and Conditions when they first access the website, or as part of the site registration process, ideally by checking a box and clicking “submit.” Within the Terms and Conditions themselves, 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 a website operator to protect its intellectual property, disclaim warranties that might otherwise apply and limit the scope of liability that the website operator would otherwise be exposed to. However, if the website Terms and Conditions are ruled to be unenforceable by a court or other adjudicator of law, 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 and Conditions are fully enforceable.
If you are interested in learning more about this topic or require the preparation of Terms and Conditions for your online operations, please e-mail us at firstname.lastname@example.org, 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 obtaining 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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