Are Website “Terms of Service ” Binding on You?

As you browse a website, you may notice a link at the bottom of the page to the “terms of use.” Have you ever clicked that link and read the terms? If you are like the vast majority of people, the answer is no, and courts are starting to recognize that fact.


The terms of use of a website are supposed to act as a contract between you and the site. How can a contract exist if visitors rarely read the terms, much less agree to them? Judges are now ruling it can’t. learned this painful lesson recently.

In January of 2012, Zappos reported a database security breach affecting up to 24 million customers. A class action lawsuit was filed against the company, and counsel for Zappos argued the lawsuit should be dismissed, with the dispute instead being sent to arbitration pursuant to language in the terms of use for the site.

Zappos used the “link at the bottom of the page” approach in its arguments. The suing lawyers argued the terms were not binding on the visitors to Zappos because there was no evidence the visitors ever read or agreed to the terms.

The court agreed and ruled the Zappos terms invalid. In ruling, U.S. District Judge Robert C. Jones noted on the last page of the decision,

“…[T]he 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.”

The Lesson

Are website terms of use binding on you? Not if you have to access them via a link buried at the bottom of a site, and you are not asked to check a box agreeing to them.