Is a “Click Here to Agree” checkbox really legally binding?

Published: February 24th, 2017

Your web site order form or registration form comes complete with terms and conditions.  What is the best way to have the user see and agree with these terms?  Ultimately, you want the user’s agreement to be legally binding so that if there should ever be an issue, you are protected.  Is it good enough to have the user check an agreement checkbox?  Do you have to do more?  Do you have to be sure that the user actually reads the terms?

 

Image by Nick Youngson

These questions come up all of the time and righty are a cause for concern.  Just because other web sites do it “one way” does not necessarily make that way right for you or best for you.  In this article, we will tackle the how the different choices you make in getting user agreement translate (or don’t translate) into binding contractual relationships.*

* This material is legal in nature and taken from discussions with our own legal counsel and from the American Bar Association.  However, we are not lawyers and this should not be considered “legal advise.”  Please consult your own lawyers to confirm how your choices apply to your particular situation and needs. 

1. The “BrowseWrap Agreement:” Don’t do this!

Some web sites simply include a textual statement to the effect of “Using this site signifies your acceptance to our terms and conditions” or “By submitting this form, you accept our terms of use.”  Near to these statements is usually (but not always) a link to these “terms.”  The web site user does not have to intentionally do anything to signify reading and accepting the terms. In most cases, the user may not even be aware of this statement and may not know about the terms thrust upon him/her through use of the site.

This kind of “just by using it you agree” format is known as a “browsewrap agreement.”   Courts have held that these agreements are not usually* binding on users and have little value in protecting the web site and its owners.  Do not use a “browsewrap agreement” if you want any kind of meaningful contract with the user if your site.

* An exception seems to be, for example, if the case where a user is behaving in a way that implies that s/he is aware of the terms and is trying to get around them.

2. The “ClickWrap Agreement:” Tried, True, and Still Good.

What you see more commonly is a checkbox that must be checked to signify that you accept the terms, the agreement, etc.  The agreement will be either presented right there in the page (e.g. in a scrolling box) or there will be a link to it right near the check box.  The user is not permitted to continue with the order, registration, etc., until that box has been checked indicating that the user agrees.

This is called a “clickwrap agreement.” The agreement is wrapped up in the deliberate action of clicking to signify acceptance of the terms or contract.

Courts generally uphold clickwrap agreements as legally binding.  You can use them for order forms, contracts, and other types of agreements.

What makes ClickWrap binding?

The most significant thing that makes a clickwrap agreement binding is that the user must intentionally agree (i.e. by checking the agreement box in addition to any other actions, like submitting an order).  It does not actually matter if the user has read or understands the terms as long as the user agrees.  Why? The user has the opportunity to read the agreement, ask questions, gain clarification, and to NOT agree if s/he does not understand or in fact just does not agree. By actually agreeing, the user is waiving the “I didn’t read it” or “I don’t understand it” complaints.

Clickwrap requirements:

  1. The terms must be on the page near the checkbox, so the user can read it.  Or, there must be a clear link to the terms near the checkbox.
  2. The user must not be able to proceed with any actions (e.g. ordering, registering) until the agreement checkbox is checked.

There are a number of things that strengthen the degree to which a clickwrap agreement is binding:

  1. If a link to the terms is used, it should be prominent and clear.  The text near the box should state clearly that the user is agreeing to the terms present in that link.
  2. Make sure the terms very clear and readable.  I.e. use a large type size, clear text, etc.
  3. Better than a link, include the terms in a [scrolling] area above the agreement checkbox.
  4. Make sure your site actually records and saves the fact that the agreement checkbox was checked (or not)! Include all of the contextual information such as the date, time, Internet IP address, etc.
  5. Make sure that your terms agreement is a valid and normal legal document.  Have your lawyer review it.

PDF DocuSign

So far, we have been discussing “checking a checkbox” to agree.  If you have used DocuSign or similar technologies, the process is more elaborate:

  1. You enter your name (and initials) and “assume a signature.”  This is just your name rendered is some interesting font.
  2. As you read the PDF, you click on specific boxes to “Sign” your agreement.  This pastes in your assumed signature.

This has all of the hallmarks of very good clickwrap:

  1. You are signing within the document — so there is no doubt that you were reading it, or at least saw it.
  2. You have to intentionally click to agree to each signature area.
  3. You are not “done” until you have signed all areas (i.e. you can not proceed until you have explicitly agreed)

PDF DocuSign is essentially “clickwrap” made easy and done correctly for a PDF.  However, it does not really add much binding power beyond what you can get with regular clickwrap.

Beyond Clickwrap

What can improve on clickwrap?  You can improve on clickwrap by:

  1. Intention: Making the user do more to confirm than just check a box.  This shows more intention.
  2. Identity: Find ways to more strongly associate the act of signing with who is performing that act.  This way there is less and less of an argument that “it wasn’t me.”

One way to go beyond clickwrap is to use LuxSci’s “Ink Signatures” and SecureForm service for collecting your web form data.  Ink Signatures enable you to add a box (or multiple boxes) to your web form in which your user can sign his/her name with a mouse or stylus or finger.

How can using SecureForm + Ink Signatures make your document agreements more binding?

  1. By signing your name, you are doing more work than checking a box.  This shows more intention and can make the contract more binding.
  2. The signature can be required … so the user can not proceed without signing.
  3. As the user is signing his/her own name, there can be some identity verification though this signature images.
  4. SecureForm automatically records the date and time the form was submitted, as well as the Internet IP address of the user who signed the form.
  5. You can use SecureForm’s GeoLocation feature to record the latitude, longitude, and approximate physical address of the user who signed the form when he/she signed the form.

Item 1 goes to intention.  Items 3 through 5 improve the binding of identity to the agreement.  This takes clickwrap to the next level.

What type of agreement process is best for your forms?  That really depends on the importance of your terms and the degree to which you need to have enforceably binding agreements with your end users.

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