Which T&C Clauses Are Actually Enforceable?
Most T&C clauses are enforceable until they're not. The dividing line: if it's unconscionable, preempted by federal law, or violates your state's consumer protection → it may be void.
Likely Enforceable (Don't Ignore)
| Clause | Why It Holds |
|---|---|
| Auto-renewal (with notice) | You agreed at sign-up and had the chance to cancel |
| No pro-rata (disclosed) | Upheld if clearly stated before purchase |
| Minimum term/lock-in (on pricing page) | You agreed to 12 months at checkout |
| Arbitration (with opt-out) | AT&T v. Concepcion (2011) upheld most arbitration clauses |
Often Unenforceable (Challenge These)
| Clause | Why It Fails | What You Can Do |
|---|---|---|
| Dispute window < 60 days | FCBA overrides | Dispute within 60 days regardless |
| Phone-only cancel (online signup) | FTC Click-to-Cancel | Cancel online; they must accept it |
| No refund for service not delivered | Failure of consideration | Dispute under FCBA |
| Conclusive records | Unconscionable | Demand third-party review |
| Chargeback penalty | CFPB has fined for this | Dispute anyway; don't pay the penalty |
| Passive acceptance of price changes | FTC Click-to-Cancel | Reject change in writing |
| Retroactive pricing | Lack of consideration | Refuse to pay retroactive portion |
The Three Tests
Test 1: Preempted by federal law? FCBA, FTC Click-to-Cancel, EFTA, TILA all override T&C clauses. If your clause contradicts federal law, the clause is void.
Test 2: Conspicuously disclosed? Was it in bold before checkout? Buried in paragraph 27? Courts are skeptical of hidden terms.
Test 3: One-sided? Does it apply only to you and not the company? If yes, may violate state UDAP law.
Quick Reference
| Clause | Enforceable? | Your Move |
|---|---|---|
| Auto-renews (with notice) | Yes | Cancel properly |
| No refund (company error) | Maybe not | Dispute under FCBA |
| Conclusive records | No | Demand third-party review |
| Dispute < 60 days | No | Use 60-day FCBA right |
| Change price without notice | Maybe | Cancel without penalty |
| Chargeback fee | No | Dispute; don't pay the fee |
Remember: A company can put anything in its T&C. That doesn't make it legal. When in doubt, exercise your federal rights first. Your credit card issuer is your cheapest lawyer.