Best Practices for Clickwrap Enforceability

Best Practices for Clickwrap Enforceability-01

Technology-driven contracts – check. Convenient, blazing fast online shopping experiences for your customers – amazing. But if your clickwrap agreements can’t hold up in court, then what’s the point? Without legal backing, these digital deals don’t offer any real value to your company. Fortunately, we can help.

Download: Clickwrap Litigation Trends: 2021 Report

Stay safe and protect your online Terms and Conditions by following four important best practices:

Clickwrap Best Practices

  • Require that each user affirmatively and unambiguously manifests assent to your online terms
  • Provide each user with conspicuous notice of the terms they are agreeing to
  • Get consent whenever terms are modified, and
  • Maintain excellent records that prove who agreed to your terms.

#1. Require that each user affirmatively and unambiguously manifests assent to your online terms

Unlike its predecessors, a clickwrap agreement gives you one primary advantage where your contracts are concerned. They require each buyer to take a specific action to approve and agree to your terms. By requiring customers to check a box or click a button before completing a transaction, clickwrap gives you a time- and date-stamped assent for every transaction completed. This provides a difficult-to-refute evidence that you can present in court to enforce your terms. 

While browsewrap and sign-in-wrap do offer some legal protections for the company using them, these agreements are nowhere near as strong or successful in a courtroom because they fail to provide clear, 100% certainty that a user read, understood, and agreed to your online terms.

#2. Provide each user with conspicuous notice of the online terms they’re agreeing to

Pay special attention to the design and layout of any screen when a purchase is made as well – it’s important you don’t clutter the screen or use text colors/fonts that prevent the shopper from finding your terms. Each page’s language should also indicate that the agreement must be accepted before being able to proceed to the next step in the process.

If you choose to use a sign-in-wrap agreement, go one step further and make any language associated with the button/check box identical to the terminology used in your contracts. It’s also a good idea to place your agreement adjacent to any corresponding acceptance method so you can prove your users saw it before the transaction was finalized.

Related Content: How to Design and Present Enforceable Online Terms

Also, give every buyer a clear opportunity to review them before making a purchase.

Clickwrap gives you the opportunity to do this in a variety of ways: by presenting a contract directly on the shopper’s screen inside a scroll box; by giving a user a direct link to their deal; by forcing everyone to scroll through the agreement or click the link prior to enabling the acceptance button/check box; and by providing customers with their own copy of the agreement via download, print, and/or email upon completion of the transaction.

#3 Get user consent again whenever terms are modified

You can’t change the terms of a contract after a signature is given, but if you update an online agreement without telling anybody then that’s exactly what you’re doing. If you want long-term transactions to stay legally enforceable, you need to make sure your buyers are giving their consent to your current terms.

Therefore, notify your users whenever terms are modified so that they can take action and provide consent to the new version. Under no circumstances should you make unilateral changes to any website legal agreement – any time an update is made, your first step should be obtaining and recording a manifestation of their acceptance.

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#4. Maintain excellent records that prove who agreed to your terms

As far as the courtroom is concerned, if you can’t prove it, it didn’t happen. Whenever you finalize an agreement, compile an electronic trail of records that includes:

  • The individual user that agreed to the contract
  •  Identifying information about the individual user
  • The version of the contract
  • The date and time the contract was agreed to
  •  Whether or not the user viewed the contract
  • The operating system and browser used at the time of contract acceptance
  • Details regarding how the agreement was presented to the user at the time of signing
  • Screenshots that demonstrate what the screen looked like when the user agreed to the contract
  • Screenshots that demonstrate what the sequence of screens was for the process involving contract acceptance
  • Information about the time period each version of the contract was active
  • Information about the differences between versions of the contract
  • Back-end records that demonstrate individualized data relating to a specific user’s use of the website
  • An authenticated electronic signature proving the user’s identity

Make Sure Your Clickwrap Is Enforceable

As demonstrated in our previously mentioned real-world examples, an agreement that features this level of detail will almost always hold up in court. Without this information, however, you’re putting your organization in tremendous potential harm. Simply put, clickwrap agreements can deliver growth, security, and competitive business advantages to you and your organization.

Update: We have released the 2021 report of clickwrap litigation trends with more up to date best practices and case rulings from the last year. Our Clickwrap Litigation Trends: 2021 Report also analyzes the impact of the pandemic and the boon of eCommerce on the trends we see. Download your copy!

clickwrap litigation trends 2021 report

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