Implementing and Enforcing Website Terms of Service

Any website or mobile app operator should have “terms of use”, “terms of service”, or “terms and conditions” that govern users’ use of the website or app. However, this document is effectively the contract between you, the operator, and the user, governing your relationship over the use of the website or app. As a result, it is imperative that website or app operators ensure that their users have affirmatively accepted the terms of service before use.

The worst thing an operator can do in attempting to enforce terms is attempting to have mere use of the website or app constitute acceptance of the terms, even if users are provided a link to the terms to read. Instead, best practices dictate, when having users “agree” to use the website or app, such as upon user account creation or on a purchase page for e-commerce websites and apps, conspicuously posting the full text of the terms (including any privacy policy) for users to read, before having to click a box or button that says “I accept” the terms. The best acceptance pages actually require users to scroll through the entire terms before being able to check or click an accept button or box. However, where presenting the full terms may be impractical, such as on a mobile page, it is acceptable to have a link to the terms in lieu of the full text, provided that it is made clear to the user that the link connects to the full terms and that clicking or checking “I accept” indicates acceptance of those terms.

However, once a user has affirmatively accepted terms, it is important for website/app operators to keep a record of that acceptance. Courts have recently refused to enforce terms against users where operators have been unable to produce evidence that the user ever accepted the terms. While it has been possible to demonstrate acceptance by proving that use of the site could not have occurred without acceptance of the terms, it can be difficult to prove what terms were in effect at the time of the relevant use. Some operators have taken to sending users email confirmation of their acceptance of the terms, either as a separate email or as part of an account registration or purchase confirmation email, and then archiving said emails as proof of acceptance.

Finally, it is important to ensure that terms remain enforceable once they are changed. It is not practical to have the operator have the unilateral right to change the terms without any action by the user since the terms are a contract, which cannot be amended without mutual agreement. Ideally, anytime an operator changes its terms, it would have users go through the same acceptance process as when the user initially accepted the terms. However, operators are understandably wary of making the user experience too cumbersome by having users go through an agreement page anytime they wish to use the website or app anytime terms are updated. Courts have permitted unilateral changes to terms, provided that the operator gives the user sufficiently advance, conspicuous notice. Such notice should be conspicuously posted on a user’s account page or the main website/app, or emailed/messaged to the user’s address or account. The notice should also inform users that continued use of the website/app after updated terms go into effect will constitute acceptance of the modified terms.

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