A user’s assent to the TOS is best attained by requiring the user to affirmatively manifest such assent by clicking an “I agree to be bound…” check box prior to site registration and/or proceeding past the introductory page of the site. This is true even when the user has not read the TOS, provided the TOS was easy to find, read and copy. Most TOS, however, appear simply as links on the home page. Although this is common, the law is unsettled as to whether or not this is sufficient. Certainly, your legal notices should be readily apparent on each page of your site if you choose to utilize this less proactive approach. With respect to amending the TOS, some courts have required affirmative opt-in to such changes. However, the way you present an amendment can increase the likelihood of it being enforced. First, you should provide notice of the amendment in a form reasonably calculated to catch the user’s attention. In addition to prominently posting notice of the amendment on the home page, ideally you should e-mail your users (if registered), alerting them to the changes. Second, you should provide users with the option to not to agree to the change, typically by canceling their registration or otherwise limiting access (if applicable).
A TOS (and privacy policies) that is enforceable in your home state may not be enforceable in another state (or, for that matter, overseas). To the extent that your site is directed at consumers worldwide, you ought to evaluate your TOS with an international eye. Finally, since blogs and websites are frequently redesigned, you should maintain copies of prior versions of your site, including any and all legal notices, all as they appear to the user. You should maintain evidence of the dates of use of such pages and notices. Developing a set of privacy policies and TOS that suits your particular business is crucial.
Don’t rely solely on mass-market vendors or even your own untrained eye to draft these legal notices. Consult your attorney and make sure to get it right from the start.
The information presented herein by the firm is for general informational purposes only and should not be construed as legal advice. You should not act upon any information contained within this blog post without first seeking specific advice from us or from your existing counsel. The firm makes no warranties, representations or claims of any kind with respect to any of the information contained herein.