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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.

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

Example: 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.

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

Example: 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.

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.

Is the TOS a contract, or rules of service?

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  • Marriage is not a contract - you should find a better example
    – Dale M ♦
    Commented Mar 8, 2019 at 3:21
  • This question presents a false dichotomy. Something can be both a contract and the enforceable rules for use, or it can be neither a contract nor legally enforceable rules.
    – user4657
    Commented Mar 8, 2019 at 3:26
  • Wait marriage is a contract
    – User37849012643
    Commented Mar 8, 2019 at 3:31
  • @Nij All contracts are considered agreements, but not all agreements are contracts. Contracts are a legal relationship between two parties and is legally binding; a rules of service is an agreement between a service provider and a user which is not legally binding. I don't agree that a TOS can be both legally binding and at the same time not legally binding.
    – User37849012643
    Commented Mar 8, 2019 at 3:50
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    @ Dale M while I agree it isn't the best example, much legal analysis of marriage refers to "the marriage contract".
    – David Siegel
    Commented Mar 8, 2019 at 3:51

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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 is a contract at all.

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.

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 rules, or conditions of entry.

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.

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.

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  • shouldn't the company separate it's rules from it's contracts with the user because if the company breaches their own contract couldn't they void their rules?
    – User37849012643
    Commented Mar 8, 2019 at 3:38
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    @StephanS Contract terms are not voided when the contract is breached. Rather, they are used by courts to work out damages. And certainly rules that have nothing to do with the contract are not affected. Separating rules and terms would be nice but is not legally required.
    – Greendrake
    Commented Mar 8, 2019 at 4:00

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