Since arriving at PactSafe headquarters, there have been multiple terms thrown out there leading me to stare blankly at our COO, Eric, and say, “Eric…I have no idea what that means…” Which is typically followed by a chuckle and a thorough explanation on what the heck is happening.
Often times, however, I’ve found that I know exactly what our PactSafe team is talking about — I just never knew any of these things had names!
While making this realization, I considered that some of our digital legal soldiers out there may be struggling with similar situations.
This article will act as a quick guide to digital legal terms and point you in the right direction for doing business online.
Most of the time you will find links to browsewrap agreements in the footer of a web page, usually along with lots of other links. Often times these links are buried and very difficult to find. In order to bind a website user to a browsewrap agreement, the user needs to have what is called "actual or constructive notice" that 1) the browsewrap exists and 2) that their use of the website makes them bound to the browsewrap agreement. In other words, if they don't know it is there, and don't know why it is there, it can' be enforced.
Generally, a clickwrap agreement has website users click a box or button that states “I Accept” when agreeing to a website’s terms and conditions.A clickwrap agreement is only as good as your ability to prove that a particular user accepted a particular version of the agreement on a particular date.
Enforceable Online Documents:
These are essentially sound legal agreements that are actually enforceable if you need them. You’d be surprised how many online legal agreements are unenforceable because of how they are presented or how they are tracked. If your agreements are not enforceable, then they provide no legal protection at all. See how enforceable your agreements are. Or, check in on other easy ways to not get sued.
Putting unjust terms within a contract, having people agree to them, capitalizing on the (most likely ridiculous and hidden) agreements by enforcing them on customers and basically solidifying that you have a faulty conscience.
Still confused? This explains it in depth, and it’s a quick read. Do yourself a favor and read up on unconscionability! When it comes to digital legal law, you can never know too much.
When creating digital legal agreements such as Privacy Policies, Terms and Conditions, or Terms of Service, there are often multiple versions of each document that exist. Whether the updates were generated due to an online sale your ecommerce site was holding, or something new was made available to customers, amendments to these documents come around quite often.
Version control is what your website needs in order to keep track of all of these changes and recognize what customers know about it as well as which still need to be notified. Version control is cool because it gives your legal team the power to implement real-time updates to terms/conditions while minimizing or eliminating IT or development’s involvement and increases the ability to quickly find previous versions of agreements.
A modification to digital legal agreement happens when it is changed or modified (duh). What makes this type of modification different than modifications in the context of paper contracts is that they are usually made without any negotiations between the contracting parties (i.e. the business and the customer). When that happens, you run the risk of making a unilateral change, which sometimes can make your contract unenforceable.
You need to be super careful about how you make the modifications, what your agreements say about your ability to make modifications, and how/when you communicate those modifications to customers.
It’s crucial that your customers are up-to-date on your latest legal terms and policies, especially as you are updating and modifying them. This is important for two reasons. First, if you don’t give proper, reasonable advance notice of modifications to your customers, those modifications may not be legally binding. Second, it’s always best to be super transparent and upfront with your customers about your legal terms and policies. The more transparent you are, the less likely your customers will revolt.