Clickwraps

8 Questions to Determine Your Clickwrap Court Readiness

Clickwrap Court Readiness-13

In case you're new here,  clickwrap agreements are the best way to eliminate legal risk from your contracts without negatively impacting the online customer experience. As long as you’re able to align with current clickwrap litigation trends and best practices.

So, are your company’s clickwrap agreements enforceable should a worst-case scenario occur? Ask yourself eight questions to find out – before it’s too late.

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1. Can You Obtain Acceptance Records?

Back-end records of acceptance is one of your most important piece of evidence. After all, if you can’t prove someone agreed to your terms, it’s going to be difficult to convince a court to enforce them.

And when it comes to capturing these records, the more specificity you can provide the better off your agreements will be. Upon a court’s request, you should be able to provide the name of who accepted your agreement, when they accepted the agreement, and which version of the terms they agreed to.

While most companies that produce this level of detail win their case and successfully enforce their terms in court, only 24% of cases included proof of user acceptance. Make sure you have an automated recordkeeping solution in place to protect the integrity of your agreements.

2. Are Your Agreements Conspicuous?

While legal teams focus the majority of their time and resources on an organization’s contract terms, it’s important to realize that the presentation of your agreements is every bit as important as what they say. There’s more than one example of a case where – despite having records of acceptance – the business ultimately failed to enforce its terms because the agreement was inconspicuously displayed.

It’s critical to give your buyers a clear opportunity to review your terms in their entirety – and to be able to prove to a judge they had this chance. Pay special attention to the design and layout of the end user’s screen to be sure all of the language clearly indicates that by taking action they are agreeing to your terms and proceeding to the next step in the transaction.

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A user’s screen shouldn’t be cluttered with multiple links and confusing language. Instead, design it in a way that keeps everything simple: use distinct fonts, colors, and links to move your transaction process forward. A scroll box, for example, that includes all contract provisions and needs to be scrolled through before a separate “Accept” button can be clicked is one way many organizations make their agreements conspicuous.

To take clickwrap best practices one step further, you can even provide buyers with their own separate copy of an agreement after they’ve accepted by letting them download, print, or email themselves the contract upon their approval.

3. Do You Collect Explicit User Assent?

To make a clickwrap agreement enforceable in court, you need to make users affirmatively and unambiguously assent to your online terms. A common clickwrap litigation trend that helps you prove this is using separate buttons for each different purpose. Your sign up button shouldn’t be the same one someone clicks to agree to a long list of terms.

By presenting your online agreements as a  clickwrap, everyone who accepts your terms must prove they assent by checking a box and/or clicking a button indicated their explicit approval. Another method – though not as legally enforceable – is using a sign-in-wrap to notify a user that by logging in (or signing up, registering, etc.) they are simultaneously assenting to your terms.

4. Can You Quickly Produce Proof of Acceptance?

In a courtroom battle over contracts, you can be sure you’re going to have to prove user acceptance. But just because a judge will wait weeks or months for this evidence doesn’t mean that should be the standard you hold your agreements to.

That’s because a time-consuming manual search of your database is expensive. And, it pulls resources away from your technical teams that could be better spent on more strategic objectives. Clickwrap best practices state your records should be findable enough to be reported within 24 hours of a request.

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If you can’t meet this standard, focus on automating your recordkeeping capabilities to provide individualized acceptance data, specific user’s website usage insights, and authenticated signer identities and get your legal team back to more important tasks.

5. Can You Prove What a User Sees on Their Screen?

One of the emerging clickwrap litigation trends we’ve noticed is being able to prove exactly what a user sees on their screen at the time of terms acceptance. Businesses that successfully replicate what a specific user saw at that specific moment to the court have experienced tremendous success in clickwrap agreement enforcement.

Combined with additional back-end records of acceptance, screenshots can be a powerful tool for your legal team. If you have contract solutions capable of providing this information every time someone accepts an agreement, be sure to include:

  • What the screen looked like when the user agreed to the contract
  • What the sequence of screens was for their contract acceptance process
  • How the screen design and process changed over time (if applicable).

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6. Can You Deploy Updates Across the Enterprise Without a Tech Team?

Contracts can be notoriously painful to create, negotiate, and accept. Fortunately for online agreements, many of the traditional delays are minimized (if not eliminated entirely). However, these digital alternatives can still come with a headache or two.

One of the most frustrating elements of digital contracting is relying on a technical or development team to manage them. Without clickwrap, legal typically lacks visibility into when terms are published, where they’re hosted, and how to update them when necessary.

In addition to a potentially slow and inconvenient process whenever changes need to be made, this lack of legal team control opens a business up to a variety of legal risks. If another team fails to update an agreement with the proper language or doesn’t display it properly on the page a user is looking at, it can make a contract impossible to enforce.

7. Can You Prove Acceptance Whenever You Update Terms?

You update your online terms and send out an email to customers that lets them know about the changes. Job done, right? Well, not exactly.

Simply notifying users of a change doesn’t prove that they’ve explicitly accepted your new terms. And a courtroom is likely to find that’s the case if they haven’t “signed” something since their original contract.

Therefore, clickwrap best practices dictate that you capture acceptance any time your terms change. Notify users as soon as their agreement changes, and gain provable consent of these changes via the click of a button or checking of a check box.

You should also avoid unilateral changes to website legal agreements, as trying to keep track of multiple sets of terms becomes very complicated very quickly. Keeping a record of how your agreements change over time is also a smart thing to do – if you can provide records of each version, what specifically changed, when changes were made, and what the differences between each version are, then you’re much more likely to ensure enforceability.

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8. Are Your Agreements Hosted and Tracked by an Unbiased Third Party?

Detailed records of acceptance are great. But clickwrap litigation trends of late show that records hosted and tracked by an unbiased third party vendor are even better for your case.

Whether everything you do to manage your agreements is by the book or not, a courtroom has to be skeptical of what an involved party says and does because they risk direct consequences. Providing authoritative and honest external proof that your methodology is effective goes a long way toward making a clickwrap agreement enforceable.

For most organizations, aligning to clickwrap litigation trends and best practices is a tricky process. Take the Clickwrap Litigation Assessment to determine the court readiness of your clickwrap agreements. 

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