Best Practices for Legal Clickwrap Agreement
"I Agree" captures consent to standard terms in one click
When you click “I Agree” to terms of service, you’re likely using a clickwrap agreement.
A clickwrap refers to a simple method for legally indicating consent to a set of terms such as terms-of-service and privacy policies by clicking "I Agree" or a similar process. Other use cases include account sign-ups and openings, software licenses and downloads, product trials, checkout pages, and registration pages.
When properly implemented and maintained, clickwraps can be a highly effective legal tool, particularly for online transactions and applications. However, many organizations who don’t follow best practices are learning the hard way that clickwrap agreements need to be carefully handled in order to be enforceable.
Here we cover some commonly made mistakes when setting up clickwrap agreements, and guidance on best practices to help make sure your clickwraps will be enforceable when you need them most.
1. Users must see the agreement
Use clear design elements to draw user attention to the clickwrap
Contracts presented during the user sign-in process is often a gray area. Design matters. Businesses that present a sign-in page without enough visual distinction are often unable to enforce their clickwrap agreements.
Even when a “sign-in” button is user-friendly and obvious, courts have found businesses must do more during the sign-up process to draw users’ attention to the terms-and-conditions link, such as using bold, larger, or different font, and making the agreement accessible from multiple locations on the webpage.
- The design and layout of the agreement matters. Don’t bury the link in a mess of other links. Use super obvious fonts, colors, or underlines.
- Ensure clickwrap agreements are presented in a manner that complies with the Canadian Charter of Rights and Freedoms guaranteeing the equal rights of Canadians with disabilities so customers with visual impairments or other disabilities can access these agreements.
- Present clickwrap agreements in an equally responsive experience for multiple devices: computers, tablets, and mobile phones.
2. Get consent
Users must explicitly express consent when agreeing to terms
Courts do not look kindly on contracts that, absent a signature, do not offer the prospective customer a clearly noticeable opportunity to demonstrate that they actually agree to what’s in front of them. It may not be enough to only provide links labeled “Learn More” or assume consent with phrasing such as “By placing your order, you agree to our privacy notice and conditions of use.” This is especially true if the privacy terms are not easily and obviously accessible.
- Include clear language on the screen indicating that acceptance of the website legal agreement is required to proceed with its clickable transaction. The “I Agree” or “I Accept” language is generally viewed as safe.
- If a sign-on option is preferred, make sure there is an explicit notice that by signing up for your product or service, the user accepts the agreement.
- Ensure that the language and notices are consistently applied across your site(s) and applications.
3. Keep an audit trail
Document evidence of consent and maintain a detailed audit trail
Some organizations may think their clickwrap processes are sufficient without documenting evidence since customers cannot use their services unless they click “I Agree” to proceed. However, this process is not sufficient without evidence of consent. In fact, clickwrap agreements are moot unless sufficient evidence of each agreement is well-maintained for use in any resulting legal proceeding.
- Maintain a complete audit trail of records that includes information to identify the user who clicked through and accepted the clickwrap, as well as proof they viewed and consented to the agreement. Audit data should document the time and date stamp of the consent, as well as which version of the agreement the user consented to.
- Provide proof of the sign-on or click-through process (e.g. screenshots or visual description) that show details of how the agreement was presented to the user at the time of signing. This should include the sequence of screens used for the sign-in flow and contract acceptance process.
- If you’re updating your clickwrap agreements, remember to notify users who have previously consented to the prior version of your clickwrap agreements and re-capture their consent every time a new version is pushed out.
4. Avoid browsewrap agreements
Browsewraps can be hard to find during the agreement process
A “browsewrap” agreement is when a company’s policies or terms are merely linked as a hyperlink at the bottom of a webpage, perhaps even hidden in the footer, where it assumes a user has agreed to the site’s policies by merely using or browsing the website. Privacy policies are often posted this way.
Because consent is implied and not actually expressed in these browsewrap agreements, it is difficult to prove customers have actually seen and consented to the terms. As a general rule, clickwrap agreements are more enforceable than browsewrap agreements because clickwraps provide clear notice and capture expressed consent from users.
- If you’re using browsewrap agreements today, consider switching to clickwrap agreements to make your terms and policies more enforceable. Clickwraps will help strengthen your case if legal claims are made against your company.
- Give your users an opportunity to fully review the agreement terms they are agreeing to. You can link directly to the agreements or provide a scroll box, then allow the user to view the agreement before they can accept.
Clickwraps are a simple, easy-to-deploy agreement solution that capture consent to standard terms in a single click. Using a proven and well-maintained clickwrap agreement can mitigate your legal risks when it comes to deploying and managing consent if it's clearly presented, captures express user consent, and documents the necessary evidence of consent.
This blog post is offered for general information purposes only. It does not constitute, and is not a substitute for, legal advice. It is based on an article originally authored by Neel Chatterjee, partner and Victor Wang, associate at Goodwin LLP and published by Law360.