Summary. The enforceability of a terms of service document is decided almost entirely by the screen that presents it, not by the words inside it. This checklist reviews both: formation and the interface features courts examine, the evidentiary record that proves what a user saw, then the substantive provisions in the order they generate disputes — dispute resolution, unilateral modification, acceptable use, the content license, liability, and auto-renewal. Later phases cover accessibility, minors, and jurisdiction-specific supplements.

What this checklist is for. Reviewing an existing terms document and the flow that presents it, or building a new one. For the doctrine, see Website Terms of Service and Online Contract Formation.

Phase 1 — Formation: the screen

  • Is there an affirmative action tied to assent — a click on a button or checkbox — rather than passive browsing?
  • Does the notice state the legal consequence: "By clicking Continue, you agree to the Terms of Service and Privacy Policy"?
  • Is the notice visible without scrolling at the moment of the action, on the smallest supported viewport?
  • Is it legible — comparable font size to surrounding text, sufficient contrast? (Small gray type is the most common defect.)
  • Does the hyperlink look like a hyperlink — blue, underlined, or otherwise visually distinguished?
  • Is the notice spatially and temporally coupled to the action button?
  • Does any other on-screen text contradict the assent notice?
  • Has the flow been tested on mobile, in both orientations, and on the oldest supported OS?

Why this matters. Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022), states the two requirements: reasonably conspicuous notice displayed such that a reasonably prudent user would have seen it, and an action that unambiguously manifests assent, with the notice explicitly conveying the legal significance. Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017), is the template for a compliant sign-in wrap; Sgouros v. TransUnion Corp., 817 F.3d 1029 (7th Cir. 2016), shows how contradictory on-screen text defeats one.

Phase 2 — Formation: the evidence

  • Are assent events logged: user ID, timestamp, IP, user agent, and a terms version identifier?
  • Are terms versioned, with every historical version retained and retrievable by date?
  • Are screenshots or renderings of the sign-up flow archived on every material change?
  • Can the company produce a declaration establishing exactly what a particular user saw on a particular date?
  • Is there a documented process for re-acceptance when terms change materially?

Why this matters. Winning on the law is useless if you cannot prove the facts. A motion to compel arbitration is supported by a declaration, and companies that redesign quarterly without archiving lose cases they should win.

Phase 3 — Dispute resolution

  • Arbitration clause present, or a deliberate decision not to arbitrate?
  • Class and collective action waiver included.
  • Delegation clause — clear and unmistakable delegation of arbitrability to the arbitrator. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010); Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019).
  • Mass arbitration addressed with a workable structure (batching, bellwethers, informal resolution period) that is a genuine path to resolution rather than an obstacle course.
  • Fee allocation that survives unconscionability review.
  • Opt-out right (commonly 30 days), which materially strengthens enforceability.
  • Carve-outs for injunctive relief protecting IP and confidential information.
  • Provider, rules, seat, and number of arbitrators specified.
  • Forum selection and governing law clauses drafted to fit around the arbitration clause; exclusivity stated with the word "exclusive."
  • Jury waiver, conspicuous and mutual, with a judicial reference fallback for states that void predispute waivers.
  • Every ancillary document audited — order forms, promotion and sweepstakes rules, beta agreements, API terms — for inconsistent dispute provisions, and an order of precedence stated. Coinbase, Inc. v. Suski, 602 U.S. 143 (2024).
  • Recognize that sexual assault and sexual harassment disputes cannot be compelled to arbitration over the claimant's election, 9 U.S.C. §§ 401-402.

Phase 4 — Modification, suspension, and acceptable use

  • Modification requires advance notice through a channel users actually see, not silent posting. Douglas v. U.S. District Court, 495 F.3d 1062 (9th Cir. 2007).
  • Material changes require affirmative re-acceptance; changes apply prospectively.
  • The modification right is limited — no retroactive changes, and no change to dispute resolution without notice and an opt-out.
  • Suspension rights are proportionate: notice and cure for non-payment; immediate suspension only for genuine security threats or legal compulsion; suspension limited to affected components where feasible.
  • Acceptable use policy reviewed against what your users actually do — broad AUPs frequently prohibit ordinary activity.
  • Automated access and API terms drafted as conditions on the license to access, with a technical enforcement mechanism and a revocation right. See Data Scraping After hiQ v. LinkedIn.

Phase 5 — Content, IP, and liability

  • User content license limited to the operational need (host, reproduce, display, distribute, create derivative works for formatting and moderation, sublicense to CDNs and subprocessors) — not "any purpose, forever."
  • User representations of rights in submitted content.
  • Takedown mechanism and DMCA safe harbor requirements: designated agent registered, repeat infringer policy, prompt removal. See Digital Millennium Copyright Act Safe Harbors for Online Service Providers.
  • Feedback assignment confirmed not to sweep in customer confidential information or configurations.
  • Warranty disclaimers conspicuous and UCC-compliant where goods are involved.
  • Limitation of liability with carve-outs, and a cap that respects UCC § 2-719(3) for personal injury in consumer goods. See Indemnification and Limitation of Liability.
  • Indemnity from the user, scoped realistically.
  • Termination rights and data return or deletion on termination.
  • Survival and severability clauses present.

Phase 6 — Commerce and consumer protection

  • Auto-renewal disclosed clearly before billing information is collected, with express informed consent and an acknowledgment, per ROSCA, 15 U.S.C. §§ 8401-8405, and state auto-renewal statutes.
  • Self-service online cancellation available, roughly as easy as sign-up. Requiring a phone call to cancel an online subscription is the most enforcement-attractive pattern in consumer commerce.
  • No dark patterns: symmetrical accept and reject options at the same level and prominence, no pre-checked boxes, no confirmshaming, no obstructed cancellation.
  • Pricing, taxes, fees, and shipping disclosed before purchase.
  • Refund and return policy stated and consistent with state law.
  • Cross-check against the privacy policy and any consent banner, so the documents do not contradict each other. See State Consumer Privacy Laws.

Phase 7 — Users the standard flow does not fit

  • Accessibility of the assent flow: notice rendered as real text, programmatically associated with the control, present in the focus order, and verified with a screen reader. A notice that does not exist for a screen reader user fails the conspicuousness premise. See Website Accessibility Remediation Checklist.
  • Minors: contracts with minors are generally voidable; COPPA applies to services directed to children under 13; several states impose age-appropriate design and parental consent rules for older minors.
  • International users: a jurisdiction-specific supplement for regions where mandatory consumer rules apply (EU unfair terms and consumer forum protections; UK, Australian, and Canadian consumer guarantees), with an order-of-precedence clause.
  • Business customers: a separate negotiated agreement and a data processing addendum, rather than the consumer terms.

Common mistakes

  • Small gray notice text below the button — the single most common enforceability defect.
  • A hyperlink that does not look like one.
  • No assent logging or version archive, making the record unprovable.
  • Inconsistent dispute clauses across the main terms, order forms, and promotion rules.
  • Silent modification by posting, which courts do not enforce.
  • An overbroad user content license, which generates public backlash reliably.
  • Cancellation that requires a phone call.
  • One global document with no jurisdiction-specific supplement.
  • Never testing the flow on a phone.

Primary authority

Related

This checklist is educational and not legal advice. Enforceability depends on the interface presented to the particular user and on the law of the applicable jurisdiction. Consult qualified counsel about any particular terms document or flow.