A website's terms and conditions are indeed enforceable, even if users weren't forced to actually go to a T&C page at any point in time. That's according to the Missouri Court of Appeals, anyway, which has upheld a previous ruling in a lawsuit that brought into question the enforceability of ServiceMagic's Terms of Use. Still, one of the judges made clear that only reasonable terms would be upheld—no jumping on one foot while spinning plates for you.

For those unfamiliar with ServiceMagic, it's a site that provides free referrals to "screened and approved" professionals for all manner of home contracting work. One user named Victoria Major chose to use ServiceMagic to find a contractor for her home projects and was eventually referred to someone in her area. Surprise! She became dissatisfied with their work and chose to sue the contractors as well as ServiceMagic from her home state of Missouri.

The problem arose when ServiceMagic moved to have Major's lawsuit dismissed on the grounds that all lawsuits against the company must be filed in Denver, Colorado. As it turns out, this clause was buried in ServiceMagic's Terms of Use, a page on its site that was linked on various pages but not technologically required for users to read before submitting a request for a referral. (This is a somewhat controversial practice known as a "browserwrap" or "clickwrap.")

Indeed, Major admitted that she never read the Terms of Use and the case was dismissed. Major appealed, and the appeals court upheld the decision. The court said that, unlike a similar case from 2002 over Netscape's terms and conditions, ServiceMagic made the link to its Terms of Use accessible and "immediately visible," even if the user isn't forced to read through them. As a result, Major was still bound by the agreement despite her choice not to click on it.

This is not the first time a court has upheld browserwrap or clickwrap agreements. In August of 2009, a district court in Illinois came to the same conclusion in a case between two companies, and of course there's the 2005 case over Dell's clickwrapped EULA (which also went in favor of Dell). However, the visual location of the terms definitely plays a part in these judges' decisions; another browserwrap case against Overstock.com from 2009 went in favor of the user due to the fact that Overstock's terms were not prominently displayed and there was no way to ensure that the user had any idea it was there.

It's looking more and more like browser/clickwrapped terms and conditions are indeed enforceable, so long as the user is adequately notified of their existence. One appeals judge in the ServiceMagic case, however, made a point of saying that they upheld the clause because forum selection (the location where the lawsuit had to be filed) was not an unconscionable request, and that less-reasonable requests would not necessarily get the same ruling. "I do not want our opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking 'I agree,'" wrote Judge Nancy Rahmeyer.