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We constantly sing the praises of clickthrough (clickwrap) agreements for their ease of use and enforceability, but not all 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.
Clickthrough agreements (clickwraps and sign-in-wraps) 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.
Clickthrough agreement terms of service 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. Prominent notice of your terms is necessary for the enforceability of your online legal agreements.
Your users are at an inherent disadvantage when it comes to understanding your ToS. You cannot assume they can decipher legalese and tech talk; if you do, your terms are not likely to be enforceable.
Terms of service and other online legal agreements need to be written in a way that someone without a background in privacy can read, comprehend, and give informed consent to. The agreement should contain all the terms that the users is charged with knowing.
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.”
Related: Clickwrap Litigation Self-Assessment
Do not bury controversial terms of an agreement. For example, if your business plans to appropriate a user'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 PactSafe, 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, ensuring your clickthrough agreements are enforceable.
Learn more about what makes your online agreements enforceable, win/loss factors of online agreements, and what evidence to bring with you to court in our Clickwrap Litigation Trends: 2021 Report.