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Tech & Sourcing @ Morgan Lewis

TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS

Website terms of use are often copied and pasted from other sites, and viewed as “standard” or “boilerplate” terms to protect site operators and set forth the basic rules governing the relationship between the site operator and the user. It’s important for a site operator to make sure these terms give it the protections it needs, are enforceable, and comply with laws, so from time to time the terms should be reviewed and updated to align with the business practices of the site operator and applicable law.

One commonly overlooked area of importance is the language describing the site operator’s ability to unilaterally update the terms of use. This language usually looks like this:

We may, at any time and without notice, modify these Terms of Use by revising them on the Site. Your continued use of the Site constitutes your acceptance of any such revisions. You should periodically visit this page to review the current Terms of Use.

Cases that have addressed the enforceability of online contract modifications have relied on the contract law principle that the unilateral modification of contracts is not binding. In this context, having the ability to unilaterally change contract terms for users who signed up or used the site under different terms can render the contract illusory and unenforceable.

Does this mean that once a user has agreed to terms, they can never be updated? No. It means that they can’t be retroactively updated. Therefore, it is important to include clear language regarding any such updates in the terms of use to provide a mechanism for notice of any such modifications, and to have a system to track when terms are revised in order to know which terms apply to which users. 

Suggested Revisions

Based on the above, an updated version of the original language could look like this:

We may revise these Terms of Use from time to time. The changes will not be retroactive, and the most current version of the Terms of Use, which will always be located on the Site, will govern our relationship with you. We will try to notify you of material revisions; for example, via a service notification posted to the Site or an email to the email associated with your account. Your continued use of the Site constitutes your acceptance of any such revisions. You should periodically visit this page to review the current Terms of Use.

Operators should also consider adding a “date stamp” showing the date the terms of use were last updated (e.g., Terms of Use (Last Updated August 2018)) to help track when changes become operative.