Terms of Service as a Contract
Nearly every website these days boasts a terms of service, but are they actually binding? Do we find ourselves selling our souls to the website owners for merely clicking a link from a search engine to read an article? Here we will talk about these terms, and we will discuss a major bottomless pitfall of which we are standing at the precipice.
Our legal system generally lacks codified law about the binding ability of website terms and conditions, usually placing them under the broad category of contract law. But a few cases have boiled to the top of the legal system that have just enough precedence to establish a few laws. These center on three basic elements: 1.) where the terms are posted, 2.) what the terms say, and 3.) how the end-user knows about them.
The two phrases we hear in discussing these terms are Click Wrap and Browse Wrap termsi. Browse Wrap means that the terms are simply posted on the site. They do not require a user to interact with the terms for them to be agreed upon. A Click Wrap is more active. The user must click a box that they agree to the terms, whether or not they actually read them. Legal teams have argued cases resulting in both ways of expressing your ToS being binding, and also being non-binding. Usually, the determination is where the ToS is located on the website.
In general, a browse-wrap ToS buried deep inside the bloated bowls of a website are deemed non-binding simply because of the hunt required to find them. An example of cases where a browse wrap was binding was on Register.com when their browser wrap agreement was right next to the whois search form. Usually, to be sure a website has a binding ToS, a click wrap is used while creating an account or interacting with the website.