How to improve your clickthrough agreement workflow and decrease legal risk

This post was originally published February 2018.

There is no denying that clickthrough agreements (or clickwraps) have become both ubiquitous in our daily lives and a fundamental part of doing business. And for good reason: people expect transactions to happen fast, sometimes instantly, especially in online marketplaces, SaaS businesses, and mobile apps.

Slowing things down for contracts isn't an option. Businesses use clickthrough agreements to inject contracts seamlessly into their checkout flows, registration forms, and other moments of electronic engagement. However, a lack of workflow around your clickthrough agreements can expose your business to even more risk.

Contracting may sound simple, but think about the sheer scale of the traditional contracting process:

• 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 clickthroughs 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.

Messy.

And the complexities add up exponentially for even a smaller online marketplace, SaaS or mobile businesses. 

Lack of workflow is killing your clickthrough legal terms

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 clickthrough contracting process, but the cumbersome scale of legal events makes it difficult and overwhelming. 

While clickthrough agreements are clearly a way to make contract acceptance seamless and high-velocity, clickthrough contracting doesn't necessarily 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).

Related: 3 reasons the PDF is bad for business.

If you are starting a clickthrough contracting process from scratch, the solution can be relatively straightforward. But building predictability into an already existing clickthrough contracting process can be a challenge, although we often see our customers do so successfully.

3 steps to improve your clickthrough agreement workflow:

Step 1: Inventory all your clickthrough agreements and develop a process for doing so on an ongoing and periodic basis.

Include the following in your audit:

• Know what contracts are being presented and accepted via clickthroughs.
• Establish a version history for each of those contracts as far back as you can possibly go.
• Create a predictable process for modifying clickthrough contracts. This should include clear identification of which parties are needed to approve and publish updates. (Unfortunately this is not as simple as updating a Word doc!)
• Create an inventory of the appearance of your clickthrough 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 clickthrough acceptance points.
• Create a detailed and repeatable process for generating records of all clickthrough acceptance events. You'll need this if and when you are called to rely on those agreements (i.e., during customer service questions, disputes, lawsuits, and even [gasp!] class action lawsuits).

These steps will get you started creating an efficient and repeatable workflow. Keep in mind that this is not just about the ability to audit where your clickthrough 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.

To start this process, run a “Clickthrough Fire Drill”, in which various teams are tasked with modifying a set of clickthrough terms and quickly producing records of acceptance.

The results, while typically concerning (i.e., it takes much longer than anticipated), are a great way to drive home your lack of workflow and the pain that results from the absence of well-planned processes.

Related: 4 Reasons your CMS is terrible for hosting legal content.

Step 2: Clearly define and establish ownership over each component of your clickthrough agreement processes.

There is a tendency to not 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:

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

Related: Clickthrough self-assessment: Are you following best practices?

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 well time and time again for our customers. Due to the sheer volume involved, elimination of manual processes is key to creating scalable clickthrough workflows. Figure out how you can automate and centralize all aspects of your clickthrough workflow. In addition to automation, consider establishing Service Level Agreements between stakeholders to hold everyone accountable and set clear expectations.

By improving your clickthrough workflow, you give yourself and your company peace of mind knowing what to do and how to do it. You'll have more control and insight over the entire process. You'll manage your risk better, which typically means less risk, and most importantly, you'll spend less time spent on a process that is intended to actually save you time!