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Is a website’s Terms of Use enforceable?

San Diego, CA |

So apparently while using a certain website I broke a terms of use rule that allows them to fine me for my actions. I didn’t know that what I did was in the terms of use because I never fully read it due to it being very long. Can they enforce this? Or will they just kick me off the site?

Attorney Answers 3


  1. As you may have found by interacting with various sites, there are different approaches to presenting the terms of service. Some just put you at the top of the scroll, and ask you to click. Some require you to fully scroll down, to imply that you have seen it all, and click. Some just say they have them. As you can imagine, judges are more wary of cursory methods and more supportive of methods that seem to inform the user. I am not sure what sort of "fine" the site is talking about. Some sort of "in game" cash, real money, do they think they can bill your credit card? So, take some details to an attorney. That can help you decide whether to pay, get banned, or walk away.

    We do not have a client/attorney relationship until you make an appointment, we discuss your case face to face, I accept a retainer, and we explictly agree to enter into representation.


  2. Generally, online terms will be enforced if the user had actual or constructive notice of the terms (please see the post at the link below).

    It appears that you had, at the least, constructive notice of all of the terms because you read a portion. As a result, you likely are bound by those terms.

    Unfortunately, without examining the terms and all of the relevant facts, no attorney on Avvo has any way to know, or even guess, what the website's owner will do.

    This information does not constitute legal advice and does not establish an attorney-client relationship.


  3. Terms of use (terms and conditions) on a website is very much analogous to what is known as "shrink-wrap" licensing agreements.

    Courts originally viewed the enforceability of so-called "shrink-wrap" mass market software license agreements with skepticism, holding that contract terms hidden "inside the box" would not be enforceable because any contract was formed at the time of purchase and delivery of the box, not later when the box was opened. See, e.g., Step-Saver Data Sys. v Wyse Technol. (3d Cir 1991) 939 F2d 91 (this case referred to a shrink-wrap license that purchaser saw for first time on opening software was ineffective under UCC §2-207 to subsequently modify the terms of contract formed on acceptance of offer); You should also research: Vault Corp. v Quaid Software Ltd. (5th Cir 1988) 847 F2d 255 (shrink-wrap license at issue was "contract of adhesion").

    The modern view however, is materially different. This is reflected in a case known as ProCD, Inc. v Zeidenberg (7th Cir 1996) 86 F3d 1447, which continues to be the leading case on enforceability of shrink-wrap licenses. In the ProCD case, the Seventh Circuit held that a shrink-wrap license will be enforceable if (1) customers have an opportunity to review the terms of the license before making a final decision regarding use of the software, and (2) the license contains no contract terms that are unconscionable. Under this holding, the Seventh Circuit relied on UCC §2-204(1), which provides that "[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract," and UCC §2-606(1)(b), which provides that a buyer is deemed to have accepted goods when, after an opportunity to inspect, he or she fails to make an effective rejection. 86 F3d at 1452.

    The court found that a customer may signal agreement to the terms of the license by installing and using the software, regardless (AND THIS IS IMPORTANT!) of whether he or she actually took the time to read the license. Only an opportunity to review is needed.

    As such, what this means is regardless of whether you took time to read the terms and conditions posted within website, the fact that these terms and conditions were listed on the website or in some accessible form did you notice under which you had a duty to review.
    However, keep in mind that every case is different and you may want to consult an attorney to discuss the nuances of your particular case. What I am providing you here is simply general information reflective of your issue and it may or may not be applicable to your current concern.

    The information contained in my posts and or answers are provided only as general information which may or may not reflect the most current legal developments. I Brian Keith Felderstein expressly disclaim all liability in respect to actions taken or not taken based on any of the contents of this website or of the posts and or answers I contribute. My comments are NOT a substitute for legal advice from a qualified counsel and every case, fact, situation, or question you may have will be different and will likely require an attorney to spend time on your matter in order to properly diagnose and analyze your issue. You should not (and NEVER) rely on my comments as a source of legal advice. I could be wrong and in fact, my wife tells me so on an ongoing basis… If you communicate with this me via email in connection with a matter for which I do not already represent you, you should not send me confidential or sensitive information, as your communication will NOT be treated as privileged or confidential.

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