Terms of Service Design No-Nos Part 2: Lack of Recordkeeping

This blog post is the second in a three-part series designed for developers on design of your website terms of service, terms of use, and terms & conditions. See part 1 here.

ToS Design No Nos Pt2

Most designers and/or developers would probably no prioritize how a company's website terms of service versions and acceptances are designed and tracked when building an app. This is most unfortunate, as many companies have gotten in trouble by not having a proper record of who agreed to what. In this blog post, we will cover this in a little more depth and give you tips on how to design a proper recordkeeping system to keep your in-house counsel happy.

Related: 5 Components of an Enforceable Clickwrap Agreement

Terms of Service Design Mistake #2: Non-existent recordkeeping

Imagine this conversation between a developer and in-house counsel:

Counsel: We've been sued by one of our customers. I need you to find out which version of our terms he accepted. And the design flow of the clickwrap agreement on the date at which he accepted it. And what versions of our terms he's accepted since. Can you get that to me by end of day?

Developer, probably

Sure — run some queries, dig through the website CMS, use to sift through the login page to see if the implementation of your website terms of service has changed since when that customer agreed. This is all doable, but how confident are you in presenting all of these facts to a judge?

You'll of course have to spend some time sitting down with a lawyer to hammer through the details — all while completely distracted from real priorities of your other projects. And the worst part is, what if you can't prove all of the necessary details? What if the person who originally wrote the code is gone?

Related: Why Developers Need to Pay Attention to Terms of Service Sooner in the Build Process

The problem is when you are building a new app/website/service, you don't take into legal record keeping and respondents into consideration in system design. But what does that mean?

Companies get sued all the time and need to enforce their website terms of service.

What many companies do as these versions change is 1) manage it through the web CMS (which is a terrible idea) or 2) print out hard copies of these terms and store them somewhere.

Neither solution is ideal.

There should always be record of who agreed to these terms, which usually requires reverse engineering of clickthrough flows/UX & database queries.

Care about recordkeeping for your terms of service before you get sued.

Your brand is your integrity. You don't want to have to backtrack to try and prove something with a loose collection of facts across many systems. Design your system right from the get-go, or find a solution that takes out the guesswork.

Related: Accept Contracts via SMS with PactSafe

So, what should you do?

To ensure that you are recording the right elements of a user or customer agreeing to your website terms of service, consider tracking the following:

  • An identifier (like email address) along with their IP or location that can help you easily identify the user if you needed to prove it
  • All major version changes of an agreement (including knowledge of what changed)
  • All versions that a respondent has agreed to. Note: make sure that as terms are updated, you have proper methods to notify the respondent of changes (via email or when they next login) and prompt them to agree.

Related: Clickwrap Litigation Assessment

Obviously, an important course of action is also to review your implementations with your in-house counsel or law firm, too. 

To learn more about what can make your online legal terms unenforceable, read our Clickthrough Litigation Trends white paper!

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