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Why your Terms of Service might be dead in the water

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If attention isn’t paid to these critical steps, the Terms of Service may not be able to protect the developer if there is a lawsuit.

I’ve written before about why a website or mobile app’s Terms of Service are a vitally important part of the developer’s relationship with the end user. However, I think that a few points need to be emphasized with regard to these agreements that developers hate and users hate even more.

If attention isn’t paid to these critical steps, the Terms of Service may not be able to protect the developer if there is a lawsuit. In this and Thursday’s posts, we’ll look at two of these critical moves that you should make.

“Clickwrap” versus “Browsewrap” agreements:

There are generally two types of Terms of Service agreements in use these days:

  • Clickwrap agreements – these are the industry standard agreements that require a user to affirmatively click on a button, check a box, scroll down the agreement or any combination of the above in order to assent to the Terms of Service;
  • Browsewrap agreements – these are the types of agreements, often seen with Privacy Policy documents that exist merely as a link on the homepage or elsewhere on the site or app.

The industry standard is to use Clickwrap agreements, and for good reason. While the Internet provides lots of unique ways to interpret laws that existed before it was invented, there are some things that just don’t change. One of these things is the basic building blocks of a contract.

Requirements for a valid contract:

Contracts require three things to be valid:

  1. An offer – pretty self-explanatory, at least for our purposes;
  2. Acceptance – this is where we run into trouble here; and
  3. Consideration – we’ll talk about this in the next post.
If there is no acceptance of an offer, then there is no contract.

If there is no acceptance of an offer, then there is no contract. When the user affirmatively clicks the button or checks the box in a Clickwrap agreement, this is enough assent that courts have found a contract. However, with Browsewrap agreement cases, such as one case involving the Zappos website, courts have found that merely putting a link to the Terms of Service on the site (a Browsewrap agreement) does not create a valid contract.

We all know that pretty much no one reads the Terms of Service before agreeing to it. However, the law doesn’t give an excuse for those who don’t read the contracts that they assent to. When push comes to shove and the site or app developer gets sued, however, that Terms of Service could save a ton of time and hassle.

I’m running a special on custom Terms of Service and Privacy Policy agreements until the end of July. If you’re interested in that, or setting up a free consultation to discuss your game or mobile app, feel free to contact me.

photo credit: bloomgal via photopin cc

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Zachary Strebeck

Attorney at Law
California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.
California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.