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Your Website's Terms Of Service Are Unenforceable

By Joshua Kaufman

The vast majority of terms of service (TOS) on websites are unenforceable. Companies spend a great deal of time and money in crafting what they believe to be appropriate TOS, which they hope will provide them with the various protections, safe harbors and advantages needed in dealing with the public or in transacting business. Countless hours are spent honing, devising, revising and fine-tuning. Eventually, they are crafted just the way the entity wants them, and then they are posted. From time-to-time, as circumstances change, they are revised. Unfortunately, in most cases those bits will not have any legal bite.

The limitations on damages, the forum clauses, the mandatory arbitration, the automatic renewals, the IP ownership clauses, the assignments and the licenses are all for naught. Because when the entity goes to enforce the TOS, believing they have entered into a contract with their users, they are unpleasantly surprised time and again by judges who refuse to enforce them.

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