5 Tips For Improving Your Contracts in 2018

Nov 22, 2017 8:00:00 AM

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It’s that time of the year, already. If you’re like me, there’s a little time left to run to the store and roundup last second groceries before barricading myself within my apartment and avoiding anything resembling a storefront for a week or more.

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That’s right, ‘tis indeed the season for waking up from a tryptophan-induced slumber to slog one’s way through the department store for an absurdly large television. The Christmas shopping season kicks off with Black Friday this week. And while that’ll still make parking spots at the mall hard to come by, the real story comes from what’s going to be happening in homes, cars, coffee shops, and yes, probably offices all across the country. (Sorry, bosses.)

This year’s holiday season is projected to be the busiest online shopping season, well, ever. That means billions of transactions & other user interactions a day across the internet, all protected by legal language that - let’s be honest: your customers don’t read and your team doesn’t think about.

Up until now, your legal team might have gotten by without issue under such a status quo. It’s time to revisit that.

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The world around online legal language & consent is shifting. Now’s the time to take a look at what you’re doing in a traditionally forgotten area -- and make changes ahead of 2018.

A new year’s set to bring major shifts in how we think about consumers binding themselves to legal language online. If you’re working internationally, Europe’s GDPR should make privacy consent practices a major priority for Q1 2018. But it doesn’t stop at privacy-based issues. Our research team here at PactSafe has observed an emerging trend, with more and more plaintiff’s lawyers attacking the integrity, construction, and tracking of traditional clickwrap or browsewrap terms and conditions.

Through the holiday season, here’s five quick things to ensure your team’s in a good place as you enter 2018 when it comes to your online legal terms & privacy consent.

1. Buy something online through your marketplace, and see what records exist to show you’ve agreed to terms.

Want to run a test for your organization? Do a quick one yourself. Walk through your sign-up or purchase flow, opt-in to your terms & conditions or privacy policy. Immediately after, start your process of finding the records your team keeps -- not of the individual transaction -- but of proof that you’ve accepted or consented to that legal language. Does it take the form of an object file, a snippet of code, or a .CSV sheet? That’s a major, exploitable hole in your team’s online risk profile.

 

2. Check your version control.

Quick! Do you know off hand what version of a given set of legal terms is live on your site right now? Okay, okay, we’re kidding. But versioning is important and integral to ensuring you’re capturing online consent to terms & policies correctly. Are dates and times of updates listed online? Is the version the customer accepted noted in whatever records you have? Can you tell if your customers have accepted your latest update or not? Make a note of what’s missing, and plan to address it to start 2018.

 

3.  What does it take to issue an update?

Think through the last time you actually had to issue a terms update or post new legal terms altogether? What was the process like? If the technical update process required anything more than the press of a single button, it’s likely an unnecessarily arduous process for your team. Solutions exist (cough, cough) to ensure no new code has to be written or altered with terms changes are issued. It’s all about automation.

 

4. What about privacy consent?

How’s yourGDPR assessment process coming along? There’s numerous organizational concerns that your team will be thinking about to meet the May deadlines, but thinking about how to manage, track, and record privacy consent should be at the top of the list as we head toward 2018. If you’re collecting and holding information from anyone that might be an EU citizen, you’ll need a method for each to opt-in upon signing up or buying -- and a clear, understandable way to opt-out that’s just as easy as opting-in. A system of record for the opt-in or opt-out records will be important, too. Tech tools make it easy to power this process.

 

5.   Ask how many disputes you don’t hear about involve terms accepted through the buying process?

When it comes to disputes around your terms of service that rise to the level of litigation or even threatened litigation, it’s likely coming across your desk or you’re at least aware of it as counsel. If just one of these type of disputes are stopped before they begin or otherwise mitigated, a system like PactSafe often easily pays for itself -- even if you’re tracking millions and millions of transactions a year. But, the real value is often derived well before lawyers get involved.

Do you know how many disputes with customers your teams have that center around terms of service or purchase? We’ve seen enterprise organizations in the eCommerce world quickly and easily stop disputes with customers just by being able to provide our third-party, PDF records of electronic terms acceptances -- that show exactly when, how, and what a customer agreed to. That helps prevent problems, even before they begin.

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Kyle Robbins

Written by Kyle Robbins