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If your website employs a clickthrough agreement, there are a number of practices you should follow to make sure that agreement is enforceable. Your clickthrough agreement is there for a reason - and is likely intended to provide all sorts of legal protections for your website / business. However, if your clickthrough agreement is not enforceable, then it does you no good at all.
When implemented incorrectly, it can be costly. Companies like GoGo Wireless, Safeway, BMO Harris Bank, and Zappos have all suffered the consequences of not following best practices with multimillion-dollar lawsuits and costly litigation.
Here are six best practices we recommend for implementing a clickthrough:
1. Provide conspicuous presentation
Present website legal agreements during site registrations or other clickable transactions so that they are unavoidable to users. Make it clear to your users that you are entering into a contract with them. It's up to you to responsibly track legal events within your app.
2. Make notice of acceptance upfront and obvious
Clicking an agreement should be mandatory before a user can proceed. Make sure that it’s clear to your user both that:
3. Obtain clear "manifestation of acceptance" from users
It has to be clear that your user has actually accepted the legal terms. Generally, this is in the form of a check box combined with a statement that checking the box indicates acceptance of a particular agreement. Various companies do this in different ways — instead of adding a checkbox, many companies use their creation button (“Sign Up”, “Create Account”, etc.) to handle acceptance. Best practices suggest that you design this in a manner where your user must accept your legal terms in a way where they know they’re accepting them.
4. Give users clear opportunity to review agreements before accepting
Present agreements in a scroll box or provide opportunities to download or print the agreement when accepting. The most common practice to provide an option for reviewing agreements is a link to a hosted page showing your legal terms where your user can review, download, or print.
5. Design your clickthrough with version control and recordkeeping in mind
You should ensure that your implementation answers two very important questions as you’re looking to implement a clickthrough online:
As disputes arise with your terms, versioning becomes very important. Having an easily accessible history of how your terms change over time is critical to enforcing them. Many times, companies will host their legal terms on the same page on their site and update it over time. This practice can be OK, as long as you’re able to manage various versions and marry these versions of your terms to who’s accepted them.
Other companies use a legal system of record in place to verify what version of a website’s legal agreements was accepted on what date. This system can prevent many heartaches down the road as you go to publish changes, notify customers, etc.
6. Keep records of acceptance of modifications over time
Any time a legal agreement is updated, that calls for a new manifestation of user acceptance. Very few companies follow the best practice here, which is to get your users to accept the most recent version of your terms. Instead, many companies send out email updates notifying customers of updates. This type of communication implies acceptance and notice to customers, but our recommendation is a little more concrete. On top of sending an email out with information about the update, we recommend prompting users of your service (if primarily online) the next time they login with a clickthrough agreement. This way, you have proof both of the email being sent, opened, or clicked and a record proving the acceptance of those terms outright.
Update: Download our Clickwrap Litigation Trends: 2021 Report for more up to date best practices and trends in the clickwrap industry.