Drafting of terms of use for internet services and websites

When we think of the term “contract,” the typical image that comes to mind is a printed document outlining the identities of the contracting parties, the subject matter of the agreement, and the respective rights and responsibilities involved. Yet, in everyday life, we enter into contracts more frequently than we might realize, often without the formal act of signing a document to express consent. These informal agreements occur in various everyday interactions, such as purchasing goods in stores, dining at restaurants, paying for parking, and engaging in numerous other routine activities. These are essentially oral contracts where the terms—such as the subject matter, price, and the scope of rights and obligations—are often determined by publicly posted price lists, specific ordinances, or directly by statutory law.

In the digital context, where verbal or explicit communicative acts to express consent concerning the services offered by a website and the manner of their use by a visitor are absent, consent is typically inferred through the acceptance of the website’s terms and conditions. These terms are prepared and made available by the service provider in advance. Commonly referred to as “Terms of Use” or “User Agreement,” these documents effectively function as adhesion contracts. As such, they carry certain legal implications under the Law of Obligations, particularly in regard to the unbalanced power dynamic they often create between the provider and the user.

Furthermore, as these agreements usually pertain to long-distance transactions, they must adhere to stringent consumer protection laws that are integral to nearly all jurisdictions. It is incumbent upon the service provider to meet these regulatory minimum standards, ensuring that the prescribed rights and obligations are clearly integrated into the user agreement. This integration aims to safeguard the legal interests of both parties as much as possible.

A crucial aspect of these digital contracts is the determination of the competent court and the applicable law. Given the inherently borderless nature of the Internet, leaving such matters to the default rules of private international law, which handle conflicts of jurisdiction, can result in the application of legal norms from a diverse array of countries. This could potentially bring the jurisdiction of foreign courts into play, an outcome usually undesirable for service providers due to unfamiliarity with foreign regulations and the potentially high costs of international litigation. Establishing clear jurisdictional and legal frameworks within the contract is therefore essential to prevent such complexities and to provide a stable legal environment for online transactions.