On the modern days of the internet, it's very rare to see services that go without requiring users to first accept the Terms and Conditions.
Also referred to as T&C, ToS and ToU, Terms and Conditions are as old traditional contracts. As a matter of fact, they are actually contracts, as they can be composed of requirements, rules, special arrangements, provisions, and standards - which all make an integral part of a real contract.
Since it is very rare to sign up for a service or make an online purchase without first having to accept terms and conditions, it is most likely that everyone has clicked that "I agree" checkbox at least once in their life.
But what happens after that can change many things. This is because by agreeing to the contract, the people are now users, and they are binding themselves to legally enforceable contracts.
Nobody can blame you or the service if the Terms and Conditions are too long to read, or typed in a very small font. It's a fact that people actually need to read those long boring pages, putting their efforts to understand them since they can contain a lot of legal terminologies.
In short, people are strictly advised to read anything before singing, even if it is a simple click on the "I agree to the terms and conditions" checkbox of a digital document.
Digging it a littler deeper, Terms and Conditions apply to both parties.
First, the people that will become users need to accept the Terms and Conditions, and the company that is behind the service should provide all the necessary information it wants its users to obey in which also give them the rights they deserve.
Here, Terms and Conditions apply to both sides, and should be agreed by both parties in order to create a legally enforceable agreement.
Online agreements can be divided into two categories:
- Click-wrap agreement: requires users to click on the "I agree to the terms and conditions" checkbox. But before doing that, the Terms and Conditions are displayed for them to read.
- Browse-wrap agreement: is where the Terms and Conditions are located somewhere on the website. Here, the mere use of the website is seen as a user's agreement to a set of terms and conditions.
If a dispute ever happens in one way or another, such as when users feel violated, a legal case usually recognize only click-wrap agreements as real contract because legal authorities see this as user's assent.
This is because accepting Terms and Conditions by clicking on a checkbox, not only creates the legal contract, but also creates a reasonable opportunity for people to review the agreement. This gives the people the power to accept or decline.
Browse-wrap on the other hand, doesn't really bind both parties legally because users never have to accept anything before the service is provided to them.
This is why many companies with strict rules not only require people to click on the "I agree" checkbox, but to also scroll down to the end of the Terms and Conditions before the agree button or checkmark can be clicked. This essentially makes the Terms and Conditions to appear entirety at least once to make it enforceable.
Physical Vs. Digital
By understanding all the above, it's easier to understand why accepting Terms and Conditions online is no different from signing a physical copy of the contract in the real world. This is why on many occasions, digital contracts are regarded the same if not similar, to physical contracts.
We all now should know what will happen if people click on that "I agree" button or checkmark.
But there are some differences.
In a legal case, there is a rule of evidence where the best evidence is the one that should be admitted in court of law. This practice usually involves the authenticity of contract copies, and here, physical copies are prioritized that digital ones.
The reason for this is simple: physical contracts are consistent and uniformed. Physical contracts that need to be updated and maintained, must include both parties present. But in the digital realm, updating contracts in unilateral, as online services can update their Terms of Services without having the users informed about the changes in the binding documents, other than sending them a notification or email.
This makes digital contracts less capable of binding.
For this reason, If you accepted Terms and Conditions online that never included you signing up any physical copy, in most cases, you will be fine. But if you do sign a physical copy of the contract, you are legally bound no matter what.
This is why you should always keep a copy of a physical contract, as it will be much help in the event of a challenge and legal issues that emerge from the violation of the contract.
It is a global trend for the average internet user to just click the "I agree" checkbox without even reading the Terms and Conditions they are agreeing with. This is a fact, and also something that online services quietly want.
This is a bad practice for numerous reasons because basically, users are affected the most. The company that offers the service has the most power over their users. Since its those online services that create the Terms and Conditions in the first place, they are basically controlling what users do.
This is why people are urged to really read click-wrap agreements no matter what. This is to know exactly what they have agreed to.
Without proper understanding of what they are agreeing to, most people will be surprised/upset when they eventually find what they have agreed to, because in many cases, it involves many privacy insecurities.
For example, Instagram has (had) its Terms and Conditions that stated any image and video uploaded to its servers can be used by the company, or given to any other company Instagram chooses. This can include personal information such as users' names, email addresses, phone numbers, private messages and so forth.
Another example is Google's Terms and Conditions. The company said that as long as users have signed in, Google can collect information and store them on users' Google Account. And if they're not signed in, Google can also store the information it collects with unique identifiers tied to the browser, application, or device they're using.
One other example is Facebook's. On its Terms and Conditions pages, the social media giant said that it collects information from users' devices that include and not limited to: GPS location, network connection, unique identifiers from apps installed on users' devices, battery level, storage space, plugins and much much more. Facebook said that it can also see "what you see through features that we provide, such as our camera."
In a privacy point-of-view, these can be scary.
This is why Terms and conditions have become a vital part of businesses that offer their services and products online, and should be understood by will-be-users no matter what.