Poor Clickwrap Design Can Kill Your Website Terms of Use

Another day, and another case where the design of a clickwrap agreement renders a business's terms of use unenforceable.

In Berkson v GOGO LLC, the court delivered a major blow to the enforceability of what it described as “sign-in wraps” which it defined as agreements that “do not require the user to click on a box showing acceptance of the “terms of use” in order to continue. Rather, the website is designed so that a user is notified of the existence and applicability of the site’s “terms of use” when proceeding through the website’s sign-in or login process.” The sign-in wrap in this case appeared as shown below.

The court ruled that the “Terms of Use” here were unenforceable, citing multiple factors:

• Gogo did not have a practice of emailing or mailing the contents of the "terms of use" to its customers. Berskon never had a hardcopy in his possession to refer to.
• Gogo did not make an effort to draw Berkson’s attention to its "terms of use."
• The importance of the "terms of use" was obscured by the physical manifestation of assent, in this case clicking the "SIGN IN" button.
• The design and content of the website, including the homepage, did not make the "terms of use" readily and obviously available to Berkson. The hyperlink to the "terms of use" was not in large font, all caps, or in bold. Nor was it accessible from multiple locations on the webpage. By contrast, the "SIGN IN" button is very user-friendly and obvious, appearing in all caps, in a clearly delineated box in both the upper right hand and the lower left hand corners of the homepage

The big takeaway here is that the your clickwrap design can be just as important as the words contained in your Terms of Use. Using a bad clickwrap design is like trying to execute a contract with someone sitting across the desk from you, hiding that contract under the desk, and asking them to autograph a bubble gum wrapper on top of the desk. Does that sound enforceable to you?