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Does contract law supersede the terms and conditions of a website?

Elizabethton, TN |

Example, if two parties connect via a job posting website and then enter into a contractual agreement for one party to perform specific work for the other for a set fee, does their contract supersede that website's terms and conditions? In short, the two parties have agreed to specific payment terms, can the website's TOS change those terms?

The terms in question involve the payment schedule, rather than the payment itself. The contract stipulates that payment will be made by certain dates throughout the project. These dates coincide with the completion of a specified amount of work that has been completed. The site policy states the client has up to 15 days to review the work before they have to make payment. I have always thought that the contract terms in situations like this would take precedence over the site policy. Then I'm not an attorney. Thank you for your time.

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Attorney answers 4

Best Answer

Generally speaking, contract law attempts to ascertain the intention of the parties.

Consequently, it is a well-established rule of contract construction that, all other things being equal, a term specifically drafted in a negotiated contract will take precedence over "standardized" terms in a general contract. The principle is that the parties had the opportunity, at arms-length, to bargain and negotiate for what mattered most to them. Therefore, to the extent that there are any conflicts between two contracts, the negotiated contract will govern.

However, if the negotiated contract is silent on a particular term, and the parties have otherwise entered into a standardized agreement, the court may look to that agreement, for insight into the parties' intentions.

I am an intellectual property lawyer licensed to practice in the State of New York. I am not your lawyer. If you would like to retain me and my law firm, contact me, and we may be able to work together to protect your legal rights. Otherwise, this post is not intended as legal advice and no attorney-client relationship exists.


If the terms of the contract were very clear, and did not otherwise adopt the T&Cs, yes they should override the T&Cs. But without seeing the contract and the T&Cs, it is impossible to say.

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A subsequent agreement normally can revise or change Terms and Conditions, but a real analysis would require a lawyer to carefully examine the contract and the terms and conditions. My colleagues make good points about where there is no "conflict" but rather silence on a point; and about "meeting of the minds". There are other academic questions, but a review of the written materials will almost always be the best, first approach.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.


I agree with the others who have cautioned that any attorney would prefer to see the webiste TOS and your contract. However, your post indicates that you and the other party actually signed a separate written agreement. If you have a clear contract covering scope of work and payment terms and conditions, and that contract does not adopt the site TOS, then I would suggest your relationship with the other party is governed only by the 4 corners of your written agreement. I would caution you though to see if you digitally signed any web document or accepted any TOS by clicking a given link on the website such that you agreed that the site TOS would supercede or not be voided by any subsequent written agreement. If so, you may be bound by the TOS. Good luck.