The terms of service for website is a contract. Because of that, the principles of contract law apply. Two important principles of contract law for terms of service are “meeting of the minds” and “illusory promise”. Those phrases may sound a bit meaningless, legal, and abstract. However, each one holds a common pitfall that can void an entire website’s terms of service – as if it didn’t exist at all. This post is about “meeting of the minds”, and its accompanying post is about an “illusory promise” that comes up often in online terms of service.
“Meeting of the minds” and getting a click of assent.
“Meeting of the minds” means that both parties to an agreement have the same deal in mind. Usually both parties sign a contract to give a clear indication that they understood what the terms were, and agreed to them.
If you do not get a click and rely on terms of service that say “By using this website you agree . . . “, then your terms of service are almost certainly going to be a collection of words without legal effect. The user may not have read that text, and they may be using (and in fact almost certainly are) using the website not to indicate assent, but just because they want to use it.
What about terms of service updates?
To ensure that the end user agrees to any revision to the terms of service, you will need to get user consent again. Typically this is done with another click on a box with “I agree to the updated terms of service” or something similar.