I know that this post may seem self serving, but I counsel my clients not to use legal forms they simply generate on the web.
First of all, I have found most of these generators are out of date, and not up to speed on the changes occasioned by new decisions. My favorite example of this is that most generators use a browser wrap and not a click wrap. More and more, courts are insisting on a click wrap to find the contract enforceable.
However, the decision in the case of Hines v. Overstock.com took the view that merely saying that by using a web site you have agreed to its terms does not mean that the user has had reasonable notice to those terms. His decision was that for the PP and TOS to be enforceable the site user needs to indicate his acceptance of these terms by a manifestation of assent. It is my belief that this decision changes the previous law of “browser wrap” to a new level, the “click wrap” (i.e. the user clicks his consent with an “I Agree” button.)
While the opinion of Judge Johnson is not binding on all courts, I am of the belief that it will be embraced throughout the court system. His decision reminds me of the decision in Parker v South Eastern Railway, an English case from 1877, which every first year lawyer learns in their Contracts class. In that case, the jury decided that it is NOT reasonable to expect people to read the “contract” on the back of a railroad ticket. This case has never been overturned and is the law in the U.S., having been used as the precedent and cited in case law to include the back of movie tickets, parking lot receipts, coat check receipts, etc. Given this old precedent, I think the Hines case will quickly become the law of the land with lawyers arguing that a browser wrap contract is no different than the back of a movie ticket.
To make sure your users have constructive notice of the terms contained in your PP and TOS we strongly recommend that you use an “I agree” click button on your web site for your PP & TOS when your users register and (if a commercial site) again during the ordering process.
If you do not fulfill your obligations, which are many and require written documentation of your actions, you will be liable for breech of contract.
Working with an attorney knowledgeable in the area of Internet law will not only get you policies that are up to date, your attorney should work with you to understand the obligations imposed on both you and your visitor.
It is this interaction with your attorney in understanding what is contained in the policies that provides the value in using an attorney. Having that understanding is far more important than just putting the words generated on a page and thinking you are protected.