Should You Worry About Clickwrap? A PMM's Opinion

Worry About Clickwrap Blog

This is the first of a two-part series on clickwrap agreements, and it will explore what should concern you, as a business and as a consumer, about this latest digital agreement type. 

We live in a digital age, which can sometimes be intimidating.  There is almost no part of your day to day that hasn't undergone digital transformation in some fashion.  The way you listen to music, watch television, shop for groceries or clothes, navigate through a new city--all these activities have totally changed over the last decade.  

In the business world, contracts have been through a similar evolution, and the introduction of “clickwrap agreements” has fundamentally changed the way contracts can be delivered and accepted. 

Basically, we get it: change is scary and clicking checkboxes or links can seem even scarier. Here are three things that commonly make people nervous when it comes to clickwrap agreements, and hopefully this series will prompt you to call your friendly, neighborhood clickwrap experts to find peace of mind. 

The law is still playing catch-up to the ever evolving clickwrap landscape.  

Most of the time, innovation outpaces the law.  This has held especially true in our digital age, in which lawmakers still trying to comprehend Facebook’s business model while Gen Z’s have almost totally migrated away from the platform they see as "dated." In an environment this fast paced, homegrown solutions are not sustainable.

Unless you are willing to dedicate expert resources to monitoring case law, pending litigation, and clickwrap trends, only to turn around and incorporate findings into your contracting tool, you will find yourself out of compliance at some point. 

Having an expert partner in the space who’s only focus is maintaining your contracting solution is easily scalable, and allows you to focus on your core business without sacrificing risk. 

Worried about the enforceability of your clickwrap? Take our clickwrap litigation risk assessment to see where you fall. 

One wrong move, and your entire agreement can be invalidated. 

We aren’t kidding, just ask Barnes and Noble, Lyft, Zappos, Amazon, and Angie’s List (or maybe don’t, sensitive topic). All of these companies faced costly litigation around the enforceability of their clickwrap agreements for a variety of reasons the court decided had bearing on the legality of the contract.  These reasons ranged from design of the terms screen to style of clickwrap agreement deployed.

When considering a clickwrap agreement for your company, you need to be sure you partner with a solution provider who has in depth experience with enterprise level clickwrap, unlike our friends at FaceApp.

Download our report to see the upward trends of clickwrap litigation

Clickwrap is not the best fit for every type of contract

However, this doesn’t stop some solution providers from forcing the issue (these are not the aforementioned friendly neighborhood clickwrap experts). 

Depending on the nature of the agreement, the delivery methodology, the room to negotiate, etc. clickwrap may not be the best option.  Clickwrap agreements tend to be most effective for “standardized” contracts that require almost no personalization and can be reused multiple times.  Examples of standardized contracts include terms of use/terms of service, basic renewals, and NDAs.

Educate yourself on what agreement types can benefit from clickwrap, and what types of agreements simply won’t work out. 

Clickwrap can be cause for concern, but doesn't have to be

There are several things that can worry you about clickwrap agreements, including whether or not you're putting the right agreement behind it, and whether or not your agreement is valid. However, when used properly, a comprehensive clickwrap solution can artfully dodge these potential pitfalls and others. Don't believe us? Request a demo of the PactSafe solution.

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