We constantly sing clickwrap agreements praises for their ease of use and enforceability, but not all clickwrap agreements are created equal. There are some best practices you need to use to create truly enforceable clickwrap agreements—here they are boiled down to five key considerations.
Users Must Give active Affirmative Consent
Clickwrap agreements must require the user to actively click “I agree” to the terms of service (ToS) before they can proceed with their requested services. To enhance enforceability, design the site to not allow the user to proceed without giving active consent. Active consent is best given when the user is made to click a box to affirm – in contract to clicking the box to remove his consent (ex: the host has the accept box pre-ticked and the user must uncheck the box to consent). In fact, pre-ticking boxes is not only bad practice, but banned in some countries.
Pre-ticking agreements? Don’t do it!
Give Reasonable and Prominent Notice of Your Terms
Clickwrap agreement terms need to be displayed prominently. Users have the responsibility to inform themselves of the terms before clicking “I agree.” In situations where the users has consented, but has not actually read the TOS they’re said to have constructive knowledge. This is the benefit of providing the TOS in a way that a reasonable person would be able to access and read. To enhance enforceability the host should have the words “Terms of Service” written in font and color that allows the reader to identify that they should click the link or read the scroll box to understand their rights as consumers to this site. The Terms themselves should be written in a font that allows the user to easily read the language.
Clickwrap Agreements Should be Digestible to the Average Person
Your users are at an inherent disadvantage when it comes to understanding your TOS. You cannot assume they can decipher legalese and tech talk. TOS need to be written in a way that someone without a background in privacy can read, comprehend and give informed consent. The agreement should contain all the terms that the users is charged with knowing.
Do Not Exploit Unequal Bargaining Power
Your users only have the option to click agree or leave the site. You cannot use this advantage to take more from the user than necessary. Abuse of power can lead to a clickwrap agreement being deemed unenforceable. In contract law unequal bargaining power (contracts of adhesion) is frowned upon. However, even with the lack of bargaining power eCommerce TOS are typically enforceable if they clearly list the requirements for use of the site, and avoid demanding the user to give up too much in order to use the site. Clickwrap agreements will typically be “take it or leave it” but they cannot be “we take all and you leave with nothing.”
Specific consents must be distinguishable from the rest of the document
Do not bury controversial terms of an agreement. For example, if you’re going to use somebody’s personal information for marketing purposes you should request consent for that purpose in a manner that is distinct from the rest of the ToS. Hidden consents can come back to haunt hosts who cannot enforce the ToS in whole or part because of the formation of the terms. The clearer and more distinguishable the terms and consents are, the more likely an agreement will be enforceable.
If you are worried about the enforceability of your clickwrap agreements PactSafe is here to help. With our new Consent Management product you can track acceptances, withdrawals and modifications to the ToS. This product will give you confidence in your agreements and help you protect yourself against litigation.