Are click through agreements enforceable?

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A click through agreement is the fastest solution available to obtain enforceable electronic signatures for contracts. Electronic signatures are perfectly valid and legally binding in most countries around the world according to Electronic signature law.

In the United States, there are a number of laws that make eSignatures legally binding:

  • The Electronic Signatures in Global and National Commerce (E-SIGN) Act (15 U.S.C. §§7001-7031)

  • The Uniform Electronic Transactions Act (UETA) (7A Pt. 1 U.LA. 211, 211-99 (2002))

  • Additionally many states have adopted some form of the UETA

A signer must actually intend to sign a contract in order for it to be binding. Clickable agreements make sure that binding documents are conspicuously presented alongside clear methods to sign the contracts online. There should be no doubt about the signers’ intent to sign.

PactSafe's Signature Acceleration Platform has been designed with compliance of these laws in mind. Here are some of the things we do to make sure electronic signatures are legally binding.

Click through agreements keep records of acceptance

Records of signer acceptance include the contract itself, proof of authentication measures, a basic signer digital thumbprint, and a time-stamped audit trail of all activity related to a contract and its signers. As soon as a contract is electronically signed using PactSafe, we create a durable, electronic record of the process by which this electronic signature was created.  

Multiple Signer Authentication Options

You should always know, and prove, who is signing your contracts. PactSafe’s signer authentication methods include email, secure links, unique signer codes, and multi-factor authentication (e.g. codes sent via SMS). This is a vital step in asserting the validity of your agreements.

Accessible and Secure Records

All information transferred to and from PactSafe is 256-bit SSL encrypted, including usernames and passwords. Our electronic signature platform is designed to keep data secure and prevent tampering of your contracts, electronic signatures, and electronic records.

1. We create a unique record of every contract before any party electronically signs it, and of each revision. 

2. Another unique record of the contract is created of the version associated with the electronic signatures.

3. Additionally, your static files and electronic signature information is encrypted in Amazon's S3 servers, which are housed in an ISO 27001 certified data center.


Some Wrinkles in the Enforceability of Click through agreements

Despite these agreements being routinely upheld in court, there is ample room for a website to implement an unenforceable website legal agreementWe want to prevent that if at all possible.

The tips below will help you catch unenforceable terms before it’s too late:

  • Courts look at 2 primary factors when determining the enforceability of the consumer manifest assent.” Making sure that the notice and assent 1a clickwrap agreement “[1] did the consumer have reasonable notice, either actual or constructive, of the terms of the putative agreement and [2] did requirements are met is not straightforward.

  • Beyond the legal factors, and maybe even more importantly, there is still a factual determination to be made. Did the user actually click on the button?

  • What version did the user agree to when they clicked? On what date did they click? “[I]t is necessary to determine whether Plaintiffs in fact were trials from 2006 to 2010 and, if so, whether that agreement was forum selection clause.”2

  • Finally, there is a LOT of room for error between the advice a lawyer gives required to click on an "I agree" screen button when they signed up for free substantively identical to the one now before the court and contained a his client about how to implement a website legal agreement, and what a developer develops and maintains.

Two decisions in early 2015 provide a cautionary tale for companies that are not properly designing their clickwrap forms: SGOUROS v. TransUNION CORP is one of your typical class action cases where 3the defendant tries to quash a class action lawsuit by enforcing an arbitration provision. In this instance, the arbitration provision in question was part of a set of legal terms presented to the website user inside of a scrollable window. 

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