ACKNOWLEDGEMENT CLAUSE
The second clause in the Sample Terms of Service is a variety of an “Acknowledgement Clause”, a term I am using here to avoid confusion with an “Acceptance Clause”, which usually covers when one has legally accepted the delivery of goods. The Acknowledgement Clause here also incorporates a Modification Clause that is useful to any Terms of Service.
THE ACKNOWLEDGMENT CLAUSE
When you use [NAME OF WEBSITE] you accept these Terms and agree to follow them. If you choose not to accept any of the Terms here you may not use the Service or site. It’s your sole responsibility to read, understand and review these Terms from time to time as we may change them from time to time.
The Acknowledgement Clause informs the user that by using the site they are accepting the Terms of Service. It’s not ideal alone, as without some greater indication that the user has accepted one’s contract terms it at best creates only constructive notice and an implied contract that may fail at enforcing complex terms. Ideally the Terms of Service should be supported with site design—a clickthrough or popup where the Terms are presented and the user must accept them through some act. Often a button that boldly restates acceptance is used. Almost everyone should be familiar with this sort of “clickwrap agreement”, but it works well enough for most purposes.
The goal of the Acceptance Clause is to repeatedly inform the user that they are accepting these terms by using the site, and to get that message through to even the most cursory or ill-informed reader. This encourages the user to feel that they have committed to following your rules to use the site, and it can make the contract more transparent and equitable in the eyes of the court. Under EU laws simple language and transparent terms are required in terms of service, and of course the DSA (though this law largely does not apply to platforms of the size considered by these Terms) requires platforms to avoid deceptive language and design, or “dark patterns”. However, this is not really a new requirement as under both European and US contract law the courts can intervene and reject terms or contracts that they see as unfair to one party, especially consumers or a party that has little choice in agreeing to the other party’s contract.
Because of these requirements it’s important that terms are, even obvious ones like acceptance, are simple and clear. The goal isn’t just to help users, but to show potential judicial readers that the site is trying to be clear and isn’t seeking to mislead even unsophisticated parties.
While the Acceptance Clause is generally simple other parts of these terms aren’t and to help make them clear, courts, primarily in the United States, have made some specific suggestions about how to make contract language more accessible. These suggestions tend to be easy to implement and for sites where the courts remain silent on specifics they are all common sense efforts at readability and transparency.
- Use a readable font at least 12 point in size,
- Make hyperlinks distinct
- Use bolding and ALL CAPITAL WRITING to emphasize important terms.
- If your site is in multiple languages or even has a large number of users from countries with a variety of languages, the Terms of Service should be available in these languages as well as the primary one.
UNILATERAL MODIFICATION CLAUSE
In addition to the acceptance itself, this clause contains a standard and important subclause, allowing the site to change these terms when it needs to. This is a Modification Clause, and specifically the unilateral one that is found in almost every Terms of Service for online platforms. There are plenty of good reasons to change one’s terms: offering new services, changes in the law, or changes in the technology of the site itself, so it’s a necessary term. Without it one would have to contact users and force them to click through the new terms whenever one changed them and users might be able to claim they were still acting under older terms. While this term grants considerable leeway to the site operator, it is still a good practice, and may even be required, to notify the users of changes to the Terms, usually with a pop-up before they can enter the site or an obvious link on the site homepage that every user will see.
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