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26 Hamline Law Review 499 (2003)


This article examines the purpose, use and enforceability of TOUs. In so doing it looks beyond the common question of whether TOUs are enforceable to ask whether and under what circumstances TOUs are necessary. This article explores whether the nature of the Internet is so different from the brick-and-mortar world that TOUs are needed for web sites but not for retail stores. A review of many of the existing TOUs reveals that major differences exist in the number and nature of their provisions. On one extreme are the TOUs of companies like Disney, Barnes and Noble and Amazon that apparently seek to address all possible contingencies and risks. Other names for these agreements include "site license" and "conditions of use agreement." Similar licenses used in connection with the distribution and sale of software are often called "end-user-license agreements" ("EULAs'). Although this article focuses on licenses that are designed to govern the use of web sites, many of the same issues that are discussed herein are applicable to EULA's.