Terms of Service: The Agreement That’s Hardly Ever Read

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ENFORCING AN ELECTRONIC AGREEMENT THAT IS HARDLY EVER READ

If a survey could be carried out on the number of users that have ever read the terms and conditions presented in a software End User License Agreement (EULA) or on a website (say TechCabal’s or Facebook’s), we are sure to get shocking results. Certainly, not so many users read these terms that often have sweeping effect on their interest and privacy rights, before checking the “I agree” box or using the services provided on a website. Conversely, it’s almost impossible to wade through a service-providing website or download an app without noticing the terms of Service (TOS) hyperlink or hitting the brick wall of TOS pop-up that only understands a click on the  “I agree” checkbox to proceed. But are users even bound by this electronic TOS that no one hardly reads?

CLICK THROUGH VS. BROWSE WRAP AGREEMENTS

Arguably, there is presently no case surrounding this specie of electronic agreement in Nigeria and such cases are still very sparse even in more technologically advanced climes like the US and UK. However, the few cases that have been decided by the courts give an idea on the attitude of the court on such issues. These trends may help programmers and businesses in setting up effective electronic contracts.

Generally, there are click through and browse wrap agreements. From decided cases, the law leans more in favour of click through agreements (where users are presented with electronic contract in a way that requires some sort of action to proceed, usually by clicking a button or checkbox) which clearly indicates that users are consenting to the contract. In contrast, the position is quite dicey for Browse wrap agreements (because this type of user agreement only purports to bind users simply by the user’s access to the website). This latter case makes proving consent – which is a significant element of a contract – difficult but not impossible. Still, both click through and browse wrap agreements may be very effective in court, when properly implemented. I find really insightful, the remark of a US District Court on the wrongly executed Browse wrap agreement in Zappo.com’s case,

“…the advent of the Internet has not changed the basic requirements of a contract, and there is no agreement where there is no acceptance, no meeting of the minds, and no manifestation of assent. A party cannot assent to terms of which it has no knowledge or constructive notice, and a highly inconspicuous hyperlink buried among a sea of links does not provide such notice. Because Plaintiffs did not assent to the terms, no contract exists, and they cannot be compelled to arbitrate.”

BEST PRACTICES IN IMPLEMENTING ELECTRONIC TOS/AGREEMENTS

Like all agreements, a key ingredient of an electronic agreement is “acceptance” or “assent” but how does one demonstrate that a user assents to a TOS? Some suggestions and best practices in setting up an effective electronic agreement could be useful here:

  1. A TOS should be mandatory such that users cannot proceed to the next step without going through a page soliciting their consent to the TOS (e.g clicking “I Agree” or checking a box).
  2. A link to the Terms of Use agreement should be made easily accessible and noticeable to users. A link to the TOS that appears obscurely below a webpage may not meet this condition.
  3. A clear notice of the TOS should be provided on the homepage of a website. The notice should require users to review and agree to the TOS.
  4. To increase the chances of enforceability of electronic agreement, the icon or link for a TOS should be placed in the upper left-hand quadrant of the home page and all visitors be channeled through the home page. The reason for this suggestion is that the court will take judicial notice of the fact that all internet pages open from the upper left hand quadrant.

No doubt, sufficient notice of TOS is germane to its enforceability, but this introduces the corollary issue of risk of increased bounce rate that an obtrusive TOS may present. Two different sides of the same coin you may say.

This post is intended to provide general information on this topic. Specialist advice should be sought on your specific circumstance. 

 

2 Comments

  • Truth says:

    I think your post hasn’t really addressed the problem: people not reading the TOS. How will Product and services get users to read their TOS? There are some TOS which actually requires you to scroll through the EULA before you’ll see the ubiquitous ‘I Agree’ button. Still yet I don’t get to read them and I’m sure many don’t.

    To be honest, legal vocabulary is very boring and the use of logic gates of strings of ‘and’ and ‘and/or’, etc can be very confusing and will leave readers more confused than if they had not read it at all. Additionally, some sentences in legal terms really need a legal practitioner to break it down for the average user. Again, like in all legal documents, simple everyday words like ‘you’, ‘Owner’, ‘licence’, etc all have special meanings in relation to a particular agreement making the whole thing more complex and unwieldy. These are some of the reasons why I don’t read EULA, but the strongest reason is that they are too long. There was a time it was observed that the EULA of Facebook was longer than the constitution of the US…I don’t have time to read that.

    I feel the best way to go about it is to give the user a summary of the lengthy piece just to grab their attention thereby compelling them to read the full user agreement or if they decide to skip it, have adequate knowledge of the kind of agreement they are signing up to warrant a legal proceeding.

    For example instead of saying:
    ‘THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.’

    You can say this:
    ‘YOUR WARRANTY MAY BE VOIDED IF YOU USE THIS SOFTWARE IN A MANNER IT WASN’T INTENDED TO BE USED – SEE FULL EULA’

    I’m not a lawyer so I may not know the appropriateness of this but I think it may compel people to start reading the TOS in full or in part.

    • Ayo Adeyemo says:

      Spot on. I agree that failure to read EULAs is a problem but I doubt whether it is a greater problem than the issue of “enforceability” of the EULAs as pointed out in this post. The truth is, the esoteric language is not peculiar to Legal documents alone. The language of some fields like medicine, finance and even tech could be pretty complex too. The Law is developing anyways, the trend in legal drafting is gradually leaning towards simpler English by the day. I should add that Legal Agreements are worded the way they are for good reasons, mostly to cover all imaginable loopholes.

      The million dollar question is, if legal agreement were drafted in simpler English, would people then read EULAs? Would you?

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