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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?

User37849012643
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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.

Greendrake
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