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:
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?