Are a Web site’s Terms of Service enforceable? As with most legal issues, the qualified answer is “it depends.” Most sites’ TOS can be lumped into one of two types of agreements: “click wrap” and “browse wrap” agreements. There are generally no negotiations on the Internet and a contract or license requires consent. The type of consent – explicit or implicit – is the differentiator between click wrap and browser wrap agreements. A click wrap agreement requires users to click an “I Agree” button or manifest assent by checking a checkbox. Click wrap agreements are used particularly by online social networking, membership and commercial online sellers, where the site owners usually also require additional personal information. This agreement is typically a prerequisite to viewing the site or unlocking members-only content or functionality. Of course, premium content paid sites and software as a service sites (“SaaS” and formerly referred to as an application service provider or “ASP”) also require electronic payment information and assent to payment terms. Unlike the click wrap agreement, a browse wrap agreement is used passively on a site and is either contained on the site’s homepage or on a Web page accessed via a link to a page containing the site’s TOS. A user is deemed to consent to the TOS by using the site. Thus, a browse wrap agreement does not require any clear user agreement with the TOS. Courts interpreting browse wrap agreements have been mixed as to their validity. As a general rule, the enforceability of the browse wrap TOS has turned on whether the user has actual or constructive notice that the TOS applies. All Web sites should have a Terms of Service page. The TOS itself will vary depending on the site itself. Short of requiring each user to agree to the TOS via an intrusive click wrap agreement, a site owner can increase the likelihood that users have constructive notice of the TOS. For example, the Web site owner can make the TOS more prominent by using noticeable icons or hyperlink to the TOS with distinguishable font types, font size, capitalizations or emphasis. Moreover, a header or footer containing language to the effect that use of the site is governed by the TOS would be more effective.