Are ToS considered contracts in and of themselves, enforceable under contract/civil law?

Generally I'm talking about the Common Law systems in the major regions (UK, North America and Oceania). Anything that applies to (majority of) Europe would be fine too.

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Yes, terms of service (TOS) are considered contracts. The website or other entity has offered you use of their service in exchange for your adherence to their terms of service. You signify acceptance of the contract by use of the service. Normal contract interpretation, termination, etc will all apply, per the jurisdiction that applies (look for a choice of laws section in the terms of service, then look in your local jurisdiction's laws to see if the choice of laws clause is valid).

There are many exceptions depending on the jurisdiction, for instance if you don't have a French translation, your Candadian TOS may not be valid in Canada, but on the whole, TOS's are considered contracts and probably enforceable.


Providing they meet the basic requirements (see What is a contract and what is required for them to be valid?) then they are binding contracts.

Consideration is not an issue: the site provides the content, the user provides eyeballs on it. Consent is the major stumbling block. It has been held that click-wrap ToS are valid and browse-wraps may be valid providing the ToS are prominent enough.

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