[mfaustman]

Great point and requiring your users to scroll through the TOU and then agree (only after scrolling) is the best practice. Courts, however, have not conclusively said this is the silver bullet. Many TOUs have held up in court via a mere click through (with no scroll).

[joonix]

Right, it's presently very murky in the US and varies from court to court. You can only try your best to mitigate risk.