Making Your Terms of Service and Privacy Policy Enforceable

In your app or website’s Terms of Service, you very likely have a provision to the effect of: “By using this app/website you agree to these Terms of Service”. You also likely have a link to the full terms of service, usually on your website or app’s homepage. Your app’s or website’s terms of service are effectively an agreement or contract between your company and your users. However, simply having a provision that mere use of the app/website constitutes acceptance of the terms of service is the least effective way of ensuring the enforceability of your terms. Courts have been extremely reluctant to enforce terms of service, especially against consumers, that provide for acceptance by mere use of the app or website — the theory being that average individual users very rarely are aware of terms of service or their provisions unless prompted to view the terms, and one cannot agree to a contract if one is not aware of the terms. Instead, courts have preferred to enforce terms of service where the the user has to affirmatively agree to the terms of service before being allowed to use the service. The best way to demonstrate that a user has affirmatively agreed to terms of service is to bring users to a page where they can (or must) scroll through (and presumably read) the terms of service before checking a box or clicking a button that says “I Agree”. If you have terms of service for your app or website (and you should!), you should ideally program your app or site to prompt users upon creating an account to use the service, or upon entering the site if accounts are not used/required, to view the terms of service and to indicate their affirmative assent to the terms by clicking a box or button that says “I Agree”. It may seem like pestering or inconveniencing the user, but it is necessary to establish the enforceability of your terms and protect your company.

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