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Lack of Workflow is Killing Your Click-Through Legal Terms. Let's Fix That.

Feb 28, 2018 1:33:03 PM


The click-through agreement—there is little denying that it has become ubiquitous with our daily lives and a fundamental part of doing business. And for good reason—people expect transactions to happen fast, sometimes instantly, especially in the eCommerce, SaaS and mobile app worlds. Slowing things down for contracts isn't an option, so businesses use click-throughs to inject contracts seamlessly into their checkout flows, registration forms, and other moments of electronic engagement.

Click-through contracts are unique

Click-through contracts sounds perfectly simple, right? Not so fast. Think about the sheer scale of the contracting process we are talking about:

  • Multiple contract forms and templates, that change over time (as all contracts do).
  • Multiple groupings and configurations of those forms and templates scattered across an entire digital ecosystem.
  • Multiple internal stakeholders that “own” the digital real estate where these groupings or contracts are presented for review and acceptance.
  • Millions of acceptance events monthly, weekly or even daily.

The complexities add up exponentially even for a smaller eCommerce, SaaS or mobile businesses. Perfectly simple, right?

Now imagine the above process like this:

  • Multiple contract forms and templates that can't be updated and published in word.
  • Multiple groupings and configurations of those forms and templates that legal teams have little, if any control over.
  • Multiple internal stakeholders that “own” the digital real estate as well as how click-throughs are presented/accepted and how and when they are modified.
  • Millions of acceptance events with non-existent or difficult to find records that often have zero correlation to a version of an actual grouping of legal terms.

See where this is going? While click-through agreements are clearly a way to make contract acceptance seamless and high velocity, click-though contracting does NOT adapt well to established norms and best practices for managing contract processes.

You can't just make an update in Word, publish it to Sharepoint, and pull PDF or paper records when needed. Not only does this create a back-office, time-killing nightmare, but it creates all sorts of risk resulting from unenforceable contracts (just ask BMO Harris, Safeway, or Transunion).

Where is the workflow?

The common thread here–complete lack of workflow. At best, there might be a rough awareness of how and where to conduct various components of a click-through contracting process, but even then it's difficult to conduct due to the sheer scale. This is not all that surprising since large-scale click-though contracting takes a significant departure from traditional lockstep, 1:1 contracting processes.

The solution can be relatively straightforward if you are starting a clickthrough contracting process from scratch–something we see our customers successfully do all the time. But building predictability into an already existing click-though contracting process can be a challenge, although it is something we see our customers also do successfully.

Inventory and audit all of your click-through agreements

Step 1: Systematically inventory and audit all of your click-through agreements now, and develop a process for doing so on an ongoing and periodic basis.

For starters, you should do a full audit including all of the following:

  • Know what contracts are being presented and accepted via click-throughs.
  • Establish a version history for each of those contracts as far back as you can possibly go.
  • Create a predictable process for modifying click-through contracts. This should include clear identification of all parties needed to get updates approved and published (unfortunately this is not as simple as updating a word doc!).
  • Create an inventory of the appearance of your click-through acceptance points across multiple browsers, operating systems and devices. Related to this, you should also have a predictable process for modifying the appearance of all click-through acceptance points.
  • Create a detailed and repeatable process for generating records of all all click-through acceptance events—you'll need this if and when you are called to rely on those agreements (i.e. customer service questions, disputes, lawsuits, and even {gasp!} class action lawsuits).

These steps will get you started creating a workflow that is efficient and repeatable. Keep in mind that this is not just about the ability to audit where your click-through agreements are being clicked. It's about what they say over time and the ability to quickly and accurately audit all clickable events associated with them.

Something our customers see success with to start this process is to run a “Click-through Fire Drill” where various teams are tasked with

  1. modifying a set of click-through terms and
  2. producing records of acceptance–quickly

The results, while typically concerning (i.e. it takes much longer than anticipated) are a great way to drive home just how little workflow is actually present, and what a pain all of this is in the absence of well planned processes.

Define and establish ownership over every click-through component

Step 2: Clearly define and establish ownership over each component of your click-through processes.

This is incredibly important, as there is a tendency to not truly think through all of the actual stakeholders in the process (legal, contracts, procurement, engineering, architects, marketing, sales ops, etc). Carefully look into who is responsible for these components and more:

  • Drafting new click-through agreements and modifying them
  • Approving click-through agreements
  • Determining what click-through agreements get published to which acceptance points
  • Determining what the acceptance points look like (remember, presentation crucial to enforceability)
  • Publishing click-through agreements to acceptance points.
  • Keeping track of acceptance events related to click-through agreements.
  • Producing records of acceptance events.

Design your ideal click-through workflow

Step 3: Combine the results of steps 1 and 2 to create the ideal workflow for your business and teams.

This can take some time, but we've seen it work immensely well over and over again for our customers. Due to the sheer volume involved, elimination of manual processes is key to creating scalable click-through workflows. Figure out how you can automate and centralize all aspects of your click-through workflow. In addition to automation, consider establishing Service Level Agreements between stakeholders to hold everyone accountable and set clear expectations.

The result of all this? Peace of mind in knowing what to do and how to do it. More control and insight over the entire process. Better management of risk–which typically means less risk. And probably most importantly, less time spent on a process that is intended to actually save you time!

Optimize your click-through agreement workflow

Brian Powers

Written by Brian Powers

PactSafe CEO & Founder

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