If you ever want to rely on a term in a contract (such as a software licence agreement), you’ve got to make sure it has been properly incorporated. This is done by bringing the terms to a party’s attention before the contract is made.

For traditional paper contracts, this is usually quite straightforward. Signing a contract is a strong indication that the parties have accepted the terms contained within that document (see our previous blog post on acceptance). It would be very difficult for a party to claim that they weren’t aware of a term in a contract that contains their signature.

However, the internet presents more difficult challenges. How can it be shown that the terms of a contract were properly brought to a customer’s attention before a contract is made? Even more difficult, how can this be done without scaring off potential customers or completely ruining the user friendliness of a website?

Stated very broadly, most terms and conditions for a website will look to regulate two specific aspects of a user’s interaction with that site. Firstly, they will look to deal with any general browser of the website, and their access and use of the website. When it comes to general browsing, website operators quickly found that asking users to tick a box accepting terms and conditions every time they loaded a webpage became the fast track to finding another day job! Most websites have therefore taken to inserting a link to the terms and conditions at the bottom of each page and accept the risk that, should the link fail, there may not be effective incorporation of the terms.

Secondly, there may be specific transactions that take place on a website, such as purchasing goods or signing up to services (whether free or paid for). Different websites have taken to different methods of making sure the terms are incorporated before a purchase or sign up. Less risk averse operators tend to simply have a line including a link to the terms and conditions and asking them to tick a box confirming the terms are accepted. Others go much further, making users view the terms and forcing them to scroll down their entire length before clicking a button or ticking a box to accept.

Neither method provides guaranteed protection. However, should an operator ever need to rely on a term of a contract against their customer then, much like a physical signature, the customer would find it difficult to show that the terms were never brought to their attention when they had to scroll through the entire document to find that tick box.

Ultimately, the choice comes down to the balance you are willing to strike between user friendliness and having a high level of protection in case things go wrong. We can help you achieve that balance with your website terms and conditions, so give us a call today for a free no-obligation chat.