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Q:
Does a website’s terms of service constitute a binding agreement in New York?

A:

Many websites that allow consumers to purchase goods or utilize a service require visitors to acknowledge a terms of service agreement. One example is Apple’s iTunes service. iTunes is an online provider of music that can be downloaded and listened to by consumers. Before making purchases on iTunes, users must agree to the company’s Terms of Service Agreement. This Agreement can be considered a binding contract between the company and the consumer. In order to prove a breach of terms of service agreement, a plaintiff would have to prove the following:

  • The agreement was enforceable under New York law.
  • The agreement clearly defined the terms of the transaction.
  • The plaintiff carried out its obligations under the contract.
  • The defendant failed to carry out its obligations under the agreement.
  • The plaintiff incurred damages as a direct result of the defendant’s breach of the contract.

To succeed in a claim over terms of service, a plaintiff must demonstrate the same fact as the plaintiff in any other New York breach of contract claim. In the action against Apple, the court did recognize the Terms of Service Agreement as a valid contract. However, the judge in the case held that the plaintiffs failed to present enough facts to prove that the company failed to live up to its obligations under the Agreement.

To learn more about breach of electronic agreements, including terms of service, contact a New York business litigation attorney today. Call our office at (888) 497-3410 for a consultation.