A Terms of Service agreement is nothing without proper placement on your website. Whether you or your lawyer drafts the ToS is irrelevant if your ToS is placed incorrectly as placement often determines whether the ToS is enforceable.
Often clients assume that placement at the bottom of the website is enough. However, as a recent U.S. case illustrates, mere placement at the bottom of the website may not be enough!
In this recent case, a website allowed users to buy a service but did not present the ToS to users until AFTER the service was purchased. While the ToS was placed at the bottom of the website as a link labeled “Legal,” the court found this process unfair and unenforceable.
The solution? Require users to explicitly acknowledge and agree to your ToS BEFORE the point of sale and before the user clicks “I Agree” to purchase. In some cases, it may be possible to accomplish this earlier in the transaction if you require users to agree to the ToS when they create a user account BEFORE purchasing.