What Makes a Legally Binding Terms Agreement?

Implementing a terms of service on your website is always a good start in the right direction. However many fail to realize just having a terms agreement doesn’t mean anyone actually agreed to it.

Forming The Agreement

There are many ways to properly form an agreement between a website and end user. There are also many wrong ways to accomplish this as well.

The Wrong Way

One of the most common wrong ways is by claiming that accessing your site you have agreed to the terms. Now this isn’t inherently bad. but it is not good either.

These types of clauses have not always held up in court – as there is no concrete way to prove that your terms were even available or that anyone ever agreed with them.

There are certain scenarios where this may be okay however.

Another bad practice, is not having accessible links to your terms available. Accessibility is crucial in building a binding agreement – after all, if a user cannot see it, how can they agree to it?

The Right Way

As just mentioned, having an accessible policy is very important. A common practice to ensure the document is always accessible is by offering it in the footer of every page.

This ensures the user always has the option to navigate to the document to read your terms.

Although accessibility is important, there is still no explicit agreement being made. To do this, first ask yourself the question: what are my services?

If offer gardening information in the form of a blog and that’s all you do – then you may not need any form of explicit agreement. In this case a simple disclaimer about information accuracy may suffice.

However if you are offering information that could potentially cause injury or financial loss – you’ll want an explicit agreement.

Click Through Events

To get an explicit agreement, a tried and tested method has been a “click through event” or “click wrapping”. This is most often done by including a checkbox and message stating something along these lines:

By checking this box you are agreeing to our Terms of Service.

This accomplishes the failures of the first method by:

  1. Ensuring that users will have a chance to read your terms.
  2. Getting an explicit agreement between you and the user.

Breach of Terms

Having an explicit agreement of your terms between you and the user is great – but is not enough. To maintain this agreement it is important that you adhere to your terms and policies as well.

Violation of such agreements puts the legality of the document in question and exposes yourself to legal liability. Therefor we always recommend that terms agreements are never longer or more complex than they need to be.

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