united-states contract-law internet
What is the legal structure of online &quot;TOS&quot;?
<p>TOS, also known as "terms of service" or "terms of use", is an agreement entered into by a user, usually before the user is allowed to use the company's product but is it an agreement(contract), or rules to follow when using the service.</p>

<p>A <em>contract</em> is a predetermined legal relationship between two parties, that if one party is to be found in breach of this relationship damage will ensue.</p>

<p><strong>Example</strong>: Bobby gets married to Sarah, by doing so bobby and Sarah have entered into a contract that is broken by either party damages will ensue and the contract may be voided, or parts will be unenforceable. </p>

<p><em>Rules</em> to follow is more of a guideline of what to do to be able to continue using the service. (usually legally unenforceable)</p>

<p><strong>Example</strong>: A child is running around the store, the store and the mother of the child don't need to have a contract for the store to deny the mother and son service, because they aren't following the service's rules.  </p>

<p>This question of is a TOS a contract or rules to follow can have a major impact on how the user interacts with the company. Some company argues that agreeing to their terms is a contract and legally binding; Others argue that these are the rules to be followed when using our service. </p>

<p>Is the TOS a contract, or rules of service?</p>

<p>A website's Terms of Service can be or include either or both rules and terms of contract. Which part is what depends on the circumstances and whether there <em>is</em> a contract at all.</p>

<p>Like in case of any physical venue where the owner is free to impose rules on anyone wishing to visit the venue, a website owner is free to impose rules on what the visitors can and cannot do while visiting the website.</p>

<p>If you are the owner of a physical store, you may require the visitors to take off any helmets or sunglasses when they enter, and/or present their bags for inspection when they exit. These are <em>rules</em>, or <em>conditions of entry</em>.</p>

<p>Similarly, you may require your website visitors to be over certain age, only use certain devices/software for accessing the website, not to engage any robots/scrappers etc.</p>

<p>As soon as a contract between you and the visitor is formed, the relevant parts of the ToS may well be terms of the contract. For example, if visitors buy something in your store/on your website, the clauses re shipping, returns/refunds and warranty will be such terms.</p>
