Are the terms and conditions of my website always enforceable?

Giselle Ayala - Attorney at Law
3 min readMar 20, 2021

Every time you think about the use of a website for any purpose, keep in mind that once you publish your website you establish a relationship with the public. That public, which may not be as knowledgeable as you about the purpose, features, limitations, and content of the website is a consumer. In general, the consumer is considered the weak part of a contractual relationship, for that reason, in many contexts, the interpretation of the law or a contract may be resolved in favor of the consumer. The logic is this, the consumer has less protection, accordingly, he is entitled to more protection. However, this is not an absolute rule, the more sophisticated the consumer the more strict is the law. Websites, where the content is designed for knowledgable consumers, are subject to rules different from those websites designed for a layperson.

The relationship between the public and the website operator or owner must be defined. Otherwise, the website operator will be subject to unlimited risks. To limit the risk exposure and legal liability, websites usually contain terms or use, or terms and conditions. The accessibility of these terms is very important because terms that are difficult to find may not be recognized in court in case of a controversy. The accessibility of the terms is also important to know whether consumers have accepted or not the terms. Here it is worth noting that acceptant does not need to be expressed, it can be inferred from the circumstances. Considering all this, there are mainly three kinds of terms or agreements, Browsewrap Agreements and Clickwrap Agreements.

The term “browsewrap” agreement comes from the word browser, these are the kind of website agreement that aims to bind the user by virtue of the user browsing the website. Under a browsewrap agreement, the website terms are generally posted on the website via a hyperlink at the bottom of the screen. Browsewrap agreements do not require any active conduct from the user. For that reason, these agreements are only enforceable if there a conspicuous, i.e., visible, obvious, or notorious. Browsewrap agreements are enforceable if the terms are reasonably conspicuous so that the user can be fairly charged with “constructive notice” that continued use will constitute acceptance of the agreement. In determining the validity…

Giselle Ayala - Attorney at Law

Giselle Ayala is an attorney expert on immigration, business, marketing, and artist’s transactions.