Online terms of service, terms of use or "terms and
conditions" ( collectively, "TOS") are
ubiquitous-rarely do we see a website without some form of TOS,
typically accessed through a link at the bottom of a site's
home page. This runs the gamut from sites that are purely
informational and passive, having no end-user interactions and
posting no third party content, to those focusing on user-generated
content ("UGC") and e-commerce, be it at the consumer or
business-to-business level. But merely posting TOS on a site does
not make them enforceable. To ensure enforceability, an end-user
must either provide clear affirmative electronic assent to the TOS
or have actual or constructive notice of conspicuously posted TOS
before proceeding to interact with a site. Specific provisions of
TOS, particularly waivers of material rights, must also pass muster
under applicable state law.
