I came across a post on Andrew Flusche’s blog about the enforceability of website terms and conditions in Virginia in the United States. I thought I’d do a quick post about terms and conditions from our perspective down south.
With a traditional contract that is typed up, printed out and signed, there are obvious indicators that the parties have agreed to the terms in that contract. The document presumably records the terms that were negotiated and the parties’ signatures on the document indicate their agreement to the terms set out in the document. For the most part a contract doesn’t need to be signed or even in writing (there are a couple exceptions).
There are contracts you agree to (or are taken to agree to) by your conduct alone. A good example of this sort of contract is the contract you agree to at places like public parking garages. When you drive into a public parking area in a shopping centre you will be regarded as having agreed to the terms that are usually posted at the entrance. The terms are often printed on the ticket or referred to on the ticket. These sorts of cases are actually referred to as “ticket cases”.
Website terms and conditions are similar to these “ticket cases” because often all you are presented with when you load the site is a link to the terms and conditions located elsewhere. The link is usually part of a sentence that reads “I confirm that I have read the terms and conditions”. One of the important issues when it comes to “ticket cases” is that the person publishing the terms and conditions take reasonable steps to draw these to the attention of the person who is supposed to be agreeing to them (for example, a visitor to your site). So it really doesn’t help to busy the link or the reference to terms and conditions somewhere obscure on the page, especially if a user wouldn’t expect to find terms and conditions or a reference to those terms and conditions on the site and in that spot.
There are a couple things you can do to make sure your website terms and conditions are more likely to be enforced. Andrew sets them out quite nicely in his post so, in summary, they are:
- Use specific language when you refer to the website terms and conditions and what they mean
- Use devices like a checkbox (I like this method as well as or in addition to greying out the “accept” button until the checkbox is checked)
As a user the best advice is to take a little time to read the terms and conditions on a website before you agree to them and get some help if you don’t really understand them. They may seem trivial but they can have serious consequences if things go badly.