Terms & Conditions – UPDATED

Back in April 2019, I wrote a blog on Terms and Conditions. I wrote, “Your terms and conditions set out your policies, how you deal with private information, warranty information, liability, and anything else you specifically want the user to know. This is a positive measure that sets forth how your website is governed.” I talked about the benefit of having terms on your website.

The Massachusetts Supreme Judicial Court recently issued a ruling in Kauders v. Uber Technologies, Inc. (SJC 12883) (January 4, 2021), which discussed Uber’s terms & conditions and enforceability. Essentially the SJC found that the terms were not a contract with the Plaintiff because Uber’s app did not provide him with “reasonable notice of the terms and conditions and did not obtain a clear manifestation of assent to the terms.” The SJC concluded this because when a person registered on Uber’s app, they were forced to accept the terms.

The SJC analyzed its decision that online contracts should be the same as ‘paper’ contracts. Each party must understand the contract and reasonably assent to its terms. Especially important is that the person who did not draft the contract must have notice of the scope of its terms. The SJC also viewed what the contract was for, how the process took place, and the breadth of the terms.

If you make your online terms difficult to find or not clear, then a court could find them non-binding. The best way to make sure this does not occur is to make the terms front and center on your site (or online process). Ensure the language is clear and what a person agrees to when signing up for the service. And do not make the terms so tedious that a ‘reasonable’ person could not understand.

If you have questions about your terms and conditions (or any contract issue), please feel free to reach out to me to discuss.