Scroll down to the bottom of pretty much any website and what do you see?
When you’re launching a new business website, you know that you need something like that yourself. All the other websites have this stuff, so it must be important – right?
But what does all that legal mumbo-jumbo actually mean? And will it really protect your business?
From Shrinkwrap to Browsewrap
Quaint, right? And not very eco-friendly.
Software companies would print the license terms on the back of the box, and tell people that if they didn’t agree to the terms they shouldn’t tear open the plastic.
Most (but not all) US courts that considered the issue started enforcing shrink-wrap agreements back in the 1990s.
When most software moved out of the box and online, many software companies switched to “click-wrap” – where you had to click an “I agree” button before using or downloading stuff.
These days, many Internet sites and services (especially the free kind) use browsewrap agreements like this one, and again many US courts enforce them.
The Case of the Sold-Out Touchpad
Some courts have accepted browsewrap ToU’s – but not all.
The case went all the way up to the Ninth Circuit Court of Appeals, which held in 2014 that
So what does this mean for your start-up?
Just putting a link to your ToU in your footer might not be good enough to make your ToU enforceable. Giving sufficient notice to customers is important, and even close proximity of the hyperlink to relevant buttons users must click on might be insufficient.
So what else can you do?
Here are some options that could enhance your odds of a court enforcing your ToU:
- Use clickwrap rather than browsewrap.
- Make the link to the ToU more prominent. If you’re going to stick it at the bottom of the page, maybe make it bold, or a different color, or put a box around it or something.
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