Terms and Conditions

Are terms and conditions required?

Websites are not required to post terms and conditions and there are still some websites that do not do so. However, there are mandatory disclosures that apply to particular type of transactions, whether web-based or not. The Uniform Commercial Code contains requirements for making written disclaimers of warranties, and banking and financial services regulations have many specific disclosure requirements.

The Children's On-Line Privacy Protection Act requires explicit disclosures for sites collecting personal information about children under the age of 13. The Digital Millennium Copyright Act (the "DMCA") requires more disclosures. If an on-line service provider wishes to benefit from the "safe harbor" provisions of the DMCA to be protected from copyright infringement suits for content posted on websites that it is hosting, then it needs to disclose contact information to receive notices from copyright claimants.

In short, if a law requires that a written statement must be made, then the terms and conditions should comply.

What should be included in terms and conditions?

Terms and conditions may be a convenient place to include warranties, delivery terms, and return policies, in addition to any legally-required terms, based on the nature of the transaction. Other provisions often included in website terms and conditions are limitations on liability and clauses providing for certain dispute resolution procedures such as arbitration or mediation and/or designating a locale for bringing claims.

Terms and conditions can also contain restrictions on the visitor's use of the website itself. In this category are prohibitions on copying data appearing on the site, or forbidding the use of robots or spiders. Protecting the website proprietor's data by contractual agreement is important because, in the U.S., individual pieces of factual data, (i.e., an address, sports score or available ticket,) are not otherwise protected against copying by the intellectual property laws even an entire database could have limited or no protection depending on how much creative selection or arrangement was involved in compiling it. Likewise, unauthorized linking to a site is not prohibited by other law, unless it is done in a manner that constitutes copyright or trademark infringementso a term or condition may be directed to this.

The impact of an amendment to the terms and conditions is greater when there are ongoing services being provided, there are repeat customers (who may not be inclined to read the terms and conditions each time they make a purchase), or, the company's ability to disclose information is being liberalized. Sometimes a company's privacy policy is set forth, or incorporated by reference, in the terms and conditions. Depending on the factual circumstances, some privacy "policies" are contracts requiring assent, while other privacy policies are styled as statements of policy. See Privacy Policy Section below.

Are my terms and conditions enforceable?

Courts are now regularly enforcing so-called "click wrap" agreements, where a user's assent to the terms and conditions posted on a website is rendered by clicking on a button that says "I agree" or "yes". When these agreements are upheld, users are deemed bound by the terms in the same way that they would be bound by a signed contract, whether or not they actually read the agreement, so long as there was an adequate opportunity to do so. Requiring the user to expressly agree or disagree with the terms and conditions posted on a website goes a long way to ensuring that an enforceable contract was created. Whether posted terms and conditions that do not require the user to click an "I agree" button can create an enforceable contract. is less certain. (See "Can I simply post terms and conditions?")

Yet, even where an electronic agreement requires express assent, there are still reasons why a court may not enforce it. A court will consider whether the terms were presented in a way that provided reasonable notice, i.e., Was the typeface legible? Was the full text of the agreement easy to find? Was the text, even if large, easy to understand? Another element of adequate notice is whether the user was made reasonably aware that it was agreeing to a contract, i.e., was the button meant to indicate assent designated as "I agree" or "Yes", or in an ambiguous manner, such as "submit", "continue" or "show me the lenders?"

To increase the prospects of enforcement, website terms and conditions, like all standard form contracts, should be drafted in a clear manner, without technical jargon and excessive legalese. Thus, care should be taken that terms and conditions are not unduly long by virtue of irrelevant clauses or extraneous boilerplate. They should also be presented as legally-binding terms, and not mixed with marketing messages, and they should be scoured for inconsistencies with other statements made on the site. It is also important that the site allows the user adequate time to review to terms, both when first presented with them and for later reference. (For other factors relating to the presentation of terms and conditions, see "Are electronic contracts enforceable?" and "Can I simply post terms and conditions on my site?")

Terms and conditions should be capable of being retained by the user in electronic or printed form, if they are not being sent directly to the user by another means, such as by mail or fax. Some industries, such as financial services, are required to provide copies of contracts to the user in hard-copy form. In addition, as to electronic transactions generally, Section 8 of the Uniform Electronic Transactions Act, adopted in some form in nearly all 50 states ("UETA"), prohibits a website proprietor from inhibiting a user's ability to store or print the contractual terms if the parties have agreed to contract electronically and the law requires that the user be provided information in writing. One might expect the same requirement in other jurisdictions even without UETA. Under Section 101(d)(1)(B) of the Electronic Signatures In Global and National Commerce Act ("E-Sign") terms and conditions must remain available to the user, in a form capable of reproduction for later reference, if the applicable law requires that a record be retained regarding the transaction. (For the text of E-Sign, see: http://thomas.loc.gov/cgi-bin/bdquery/z?d106:SN00761: |TOM:/bss/d106query.html|; For the text of UETA, see: http://www.law.upenn.edu/bll/ulc/fnact99/1990s/ueta99.htm).

In order to avoid errors that result from typos or improper navigation of the site, the user should be able to view and approve an order summary or confirmation screen prior to the placement of an on-line order. In fact, UETA Section 10(2), gives an individual the right to rescind a website transaction resulting from his or her error if there was no opportunity to correct it, assuming that the individual promptly notifies the seller of the error, takes reasonable steps to return or destroy any product or service received, and has not used any benefits provided.

Finally, an issue that underlies all standard form consumer contracts, which are presented on a "take it or leave it basis," is whether the terms are so unfavorable as to be considered "unconscionable" and, therefore, unenforceable, regardless of whether the customer has manifested his or her assent to them. (See "What provisions are not enforceable?")

What provisions are not enforceable?
As in the world of paper contracts, certain provisions in terms and conditions may not be enforceable, even if you have obtained a click of "I agree". Illegal provisions, such as usurious finance charges, are void as against public policy, no matter how clear the other party's consent may be. Other provisions may be considered "unfair trade practices" under federal or local consumer protection laws. In addition to being unenforceable, there may be substantial penalties associated with including illegal or unfair terms in a consumer contract.

Moreover, provisions in standard form contracts which are so favorable to the vendor as to "shock the conscience" will not be enforceable on grounds of "unconscionability". An example of a provision in an electronic contract which is sometimes enforced, but other times found to be unconscionable, is one requiring the resolution of relatively small claims against the company in a location far from where the claimant resides, or a waiver of the right to bring a class action.

It is hard to enumerate provisions which are unconscionable, since the outcome often turns on the specific facts of the case, the applicable state law, the sympathies of the court, jury or arbitrator, and the standard industry view of a customer’s reasonable expectations. Even if the only risk is that the provision will be struck down (and that is often not the only risk), there can be negative publicity associated with any challenge to the company's business practices.

Enforceability of terms outside the U.S.
Terms and conditions that are enforceable in the United States are not necessarily enforceable overseas. In June of 2004, a French court struck down 31 clauses in the standard terms and conditions used by AOL's French subsidiary as violating local contract and/or consumer and data protection laws.

The questionable clauses included those which are common in U.S. website terms and conditions and other standard form consumer contracts, such as, disclaiming liability for performance and limiting the customer's remedies to terminating service. Moreover, the court suggested that consent was required for the transfer of personal information outside of Europe and the use of such information for marketing purposes. In addition to striking down the offending clauses, the French court levied fines on the AOL subsidiary, required it to publish the judgment in the newspaper and to email its subscribers regarding the changes.

To the extent that a website is directed at consumers located outside the United States, or a significant amount of transactions emanate from certain countries or from regions with uniform laws, such as the European Union, an evaluation of terms and conditions ought to be made under such foreign law to assess compliance. The website’s proprietor will also need to consider the laws of different states within the U.S., as well as the provisions of U.S. federal law. See discussion below under "What body of law governs my ecommerce site?"

How can I prove that I have a contract?
Even if the terms and conditions are enforceable in theory, the website proprietor may need to demonstrate that a contract was made when it seeks to enforce such terms. This requires preservation of the circumstances under which the terms and conditions were presented, in order to establish that notice and the opportunity to review such terms was adequate. Since websites tend to be redesigned with great frequency, the website proprietor should maintain copies of each version of the pages with any legal notices or links to them, and the terms and conditions themselves, all as they appear to the user. In addition, every time the terms and conditions are revised, a copy of each version should be preserved, along with its dates of use.

If the process relied on to establish the contract is not apparent from copies of the screens, then it should be documented in a memorandum. For example, the fact that the program will not let a user past a certain page without clicking "I agree" may not be apparent from a copy of the "I agree" screen.

Some courts and commentators have suggested that preserving "click-stream data" pertaining to each individual transaction would be useful in establishing the user's notice of the terms. Such data could indicate, for example, whether a user opened the link to the terms or bypassed them. The sophistication of the tools used, and quantity of data maintained, will likely vary with the nature of the contract and the importance of later enforcement of the terms.

Can I simply post terms and conditions on my site?

Some website proprietors simply post terms and conditions, generally behind a link labeled "terms and conditions" or "legal notices". They do this with the expectation that the terms will be enforceable without a specific manifestation of assent by the user, such as by clicking "I agree" or "yes". The terms themselves, or a separate legend on the home page, may contain statements that the posted terms are intended to create a binding contract and that certain action, such as purchasing the product, or "use of the site," is deemed an acceptance of such terms.

There are only a few cases addressing the enforceability of these "browse-wrap agreements" (as opposed to numerous cases affirming the enforceability of "click-wrap" agreements, which require the separate click of "I agree" or the like to indicate agreement to the terms.) The browse-wrap decisions are highly fact-dependent. Few, if any, present the classic situation where terms posted behind a clearly-labeled link are enforced against a user who wasn't informed of them by another means, such as by letter or by repeated exposure.

While no approach can guarantee that a given term in a website’s terms and conditions will be enforceable, the case law addressing both click-wrap and browse-wrap agreements provides some guidance as to how terms and conditions should be presented in order to increase their chances of being enforced. The most important factor is that the user gets notice that the proposed terms exist and are meant to create a binding contract. This is because the conduct that typically purports to indicate the user's assent to the terms, namely, using the website, conducting a search, purchasing the product, or downloading the software may be coincidental.

Whether notice of the terms and conditions will be considered adequate is a function of (i) the physical prominence of the notice, such as placement on the page, font size, and color, (ii) the content of the notice, i.e., does the notice hand me terms themselves, (or on various pages) link to them, make it clear that the terms are binding and that taking certain action, such as proceeding past the home page placing an order, or submitting a query, constitutes assent, and (iii) the timing of the notice, i.e., is available before the action which purports to manifest acceptance is taken?

The site must give the user an adequate opportunity to review the terms and conditions before being considered bound by them. Displaying the agreement in an unreasonably small viewing window, employing multiple hyperlinks to access it, or providing only a one-time opportunity to read it, may not provide an adequate opportunity for review. In addition, the terms and conditions should be able to be stored and/or printed by the user. (See "Are electronic contracts enforceable?")

Yet, even if there is adequate notice and a reasonable opportunity to review terms and conditions, there is no guarantee, at this point in the evolution of the law, that terms and conditions which are simply posted on the site will create a valid contract. Accordingly, if the enforceability of the terms and conditions is extremely important, or if the terms are unusual or particularly unfavorable to the user, a risk/benefit analysis may lead you to adopt a click-wrap format.

How do I amend terms and conditions?

There are no uniform laws specifically directed at how to amend electronic contracts. Attempts by website proprietors to alter their standard terms and conditions have come under attack, mainly in the context of amendments to privacy policies. Such scrutiny has come primarily from government regulators, namely, the FTC and State Attorneys General, under their jurisdiction to prohibit unfair consumer trade practices, and from consumer groups. There are analogous situations from the "paper world", for example, where credit card companies or long-distance telephone service providers attempt to make across-the-board changes to their terms of service by means of a mass mailing, or where employers attempt to change uniform employee policies. The impact of an amendment to the terms and conditions is greater when there are ongoing services being provided, there are repeat customers (who may not be inclined to read the terms and conditions each time they make a purchase), or the companies ability to disclose personal information is being liberalized. With respect to the liberalization of disclosing sensitive personal information, some courts have required affirmative opt-in to such changes.

As is the case with the enforcement of electronic contracts generally, it is more likely that individually signed (or "clicked on") agreements to new terms will be valid. This is true even if the original terms reserved the right to amend at will. Nevertheless, certain means of presenting an amendment should increase its chances of being enforced. First, advance notice of the amendment, in a form reasonably calculated to catch the attention of the user, should be provided. In addition to prominently posting notice of the amendment on the home page, some website proprietors have sent individual emails to subscribers, alerting them to the changes. Second, the content of the notice should indicate the nature of the amendment and when it will go into effect, allowing sufficient time for users to come upon the notice and react to it. Third, there should be an option for customers not to agree to the change, whether by canceling their service, or by advising the company, in which case, the old rules should continue to apply to them.

A higher degree of protection to the customer should be considered where the rights being amended are important ones and the changes are materially adverse. Of course, you cannot propose terms in an amendment which would be illegal or unconscionable, if contained in the original terms and conditions.

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