Are website terms of use enforced?

For contracts that are concluded on the internet, there are four categories to help with assessing their enforceability. Read on to find out what they are and if they can be enforced.

Some websites include a prohibition of web scraping in their Terms of Use (“Terms”). Does that mean you have to find and read all the Terms before scraping any website? Not necessarily.

The Terms and any prohibitions they may contain have a legally binding effect on you only if they meet the standards of a valid contract. The legal analysis below aims to summarize when the Terms are binding and when not, according to US case law to date.

Since Terms must constitute a valid contract to be legally binding, their enforceability lies in the very basics of contract law. For a contract to be created, there must be an offer on the one side and an acceptance on the other.

Terms are a type of adhesion contract (= non-negotiable contract presented by one party to another) which requires a slightly different approach when considering its creation than a traditional negotiated hard-copy contract. For contracts that are concluded on the internet, the theory and case law established the following categories to help with assessing their enforceability: “browsewrap”, “clickwrap”, “scrollwrap”, and “sign-in-wrap”.

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