Websites and Their Terms of Use Agreements

The Terms of Use of A Website

Most websites these days include a Terms of Use (TOU) agreement. A TOU agreement contains a set of rules promulgated by the owner of a website or service.  Specifically, website Terms of Use Agreements provide the terms and conditions a user must agree with to use the website.

Enforcing Terms of Use Agreements

Enforceability of a Terms of Use agreement is based on theory that a contract is formed from posting and use. For example, one party posts the TOU of a website. And, another party using the website accepts the terms in exchange for use of the website. However, there must be a reasonable expectation that the user of the website would see the Terms of Use agreement. Therefore, it's important the Terms of Use agreement be clearly visible to a user. And, the Privacy Policy and any other relevant terms and conditions should also be clear.

To enforce a Terms of Use agreement, the website owner must prove that the visitor agreed to the terms. Courts have found that TOUs are binding to the extent that there is some affirmative action. For example, such as using the website on the part of the user. Such use constitutes acceptance of the terms. Thus, the Terms of Use agreement should specify that, by using the website, the user is agreeing to the TOU. A website owner can obtain further protection by creating an opt-in checkbox or button to allow use of the site. This would help show a website user's implicit acceptance of the Terms of Use. The website owner can later use this to enforce the Terms of Use agreement.

Intellectual Property Protection Clauses

Terms of Use agreements can also provide a level of trademark and copyright protection. TOUs can contain provisions prohibiting use of trademarks and logos without consent.  Similar provisions can protect against copyright infringement.

Terms of Use Revisions and Updates

With respect to any revisions made to the Terms of Use agreement, there should be some acknowledgment that users have reviewed the changes and agree to any and all modifications and updates of the Terms of Use.

Other Provisions to Include in TOU Agreements

Additionally, a Terms of Use agreement should provide information regarding, for example:

  • User responsibility for passwords

  • ID security

  • Prompt reporting of any compromises

  • Prohibitions from posting or transmitting harmful or illegal content

  • Prohibitions from interfering with the operation of the website

Typically, a Terms of Use agreement also includes common provisions found in most contracts, including: (1) the governing law and jurisdiction for disputes; (2) integration or merger clause; (3) survival language; and (4) the effective date.

About the Firm:

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the IP law firm and its IP law attorneys may be found at

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