Are website terms and conditions enforceable?

The answer to this question is…it depends.

The static link terms and conditions that are contained at the bottom of most websites are most likely not enforceable.  This is because it is possible for the website user to never come across the terms and they are highly unlikely to read them.

For the terms and conditions to be valid, a user must actively click a button that says “I Accept” the terms and conditions.  The terms and conditions must be shown to the user prior to clicking in the button.  In addition, the user must be receiving something in return for clicking the button (for instance more access to the website or the ability to purchase items).  The website owner would then have a database with the user name and timestamp of the click. 

Comments

[Tyler Fonda]

We were just discussing this issue as it relates to a recent post from Josh Kopelman on simplifying the sales process through the use of a standard terms and conditions doc as opposed to a standard contractual document (http://tinyurl.com/6xkflz). I am sure we'll be talking about this issue with you soon.