Online Terms and Conditions and Assent

Websites will often put terms and conditions of use in locations that are not necessarily obvious to find for the user of the website. Some websites will have terms and conditions placed in a link at the bottom of the page, some will only present them to you if you attempt to buy a product, and some may not even link them anywhere. An important question then is when are terms and conditions enforceable against the user of a website?

The term that is often used to indicate that someone has agreed to something, such as a company’s terms and conditions, is assent. When a user assents to terms, it means that the user has agreed to the terms, which will then be binding against the user. Assent can be given when the user has notice of the terms and conditions. Notice can be through actual knowledge or constructive knowledge.

Actual knowledge is as straightforward as it sounds. If the user is actually aware of the terms and conditions, has been told about them, or for another reason has information about the terms, then the user has actual notice. Constructive knowledge is a bit more complicated. A user has constructive knowledge when the terms and conditions are presented in a way that the user should reasonably know about the terms and conditions.

There are two types of agreements that are often used on websites: browsewrap agreements and clickwrap agreements. Browsewrap agreements are agreements in which the user does not have to take any affirmative action to agree to the terms and conditions. An example of this would be found on a website that has a link to its terms and conditions at the bottom of the screen. A clickwrap agreement is when the user has to take an affirmative action to agree to the terms and conditions. An example of this would be a box forcing the user to click “I agree” to the terms and conditions. Clickwrap agreements are normally considered enforceable as clicking “I agree” creates constructive knowledge of the terms and conditions.

Constructive knowledge is much more nuanced in a browsewrap agreement. There is no brightline rule regarding when a user has constructive knowledge about a browsewrap agreement, but there are factors that are considered. These factors include where the terms and conditions are located on the page, whether they are presented in a different font and color than the rest of the text on the page, whether they are easily findable by the user, and whether or not they are put in as a hyperlink. Basically, if the terms and conditions stick out and are conspicuous from the rest of the text, then there is a good chance they will be considered to create constructive knowledge of the user.

If you have any questions about your website’s terms and conditions, please contact McNeelyLaw LLP by calling (317) 825-5110.

Disclaimer: This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.