Your website 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?
These questions come up all of the time and rightly 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!
This kind of “just by using it you agree” format is known as a “browsewrap agreement.” Courts have held that these types of user agreements are not usually* binding on users and have little value in protecting the website 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”: User Agreement Checkbox
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 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 a User Agreement Checkbox 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.
- The terms must be on the page near the user agreement checkbox, so the user can read it. Or, there must be a clear link to the terms near the checkbox.
- 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:
- 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.
- Make sure the terms very clear and readable. I.e. use a large type size, clear text, etc.
- Better than a link, include the terms in a [scrolling] area above the agreement checkbox.
- 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.
- Make sure that your terms agreement is a valid and normal legal document. Have your lawyer review it.
PDF DocuSign- Next Level User Agreement Checkbox
So far, we have been discussing “checking a checkbox” to agree. If you have used DocuSign or similar technologies, the process is more elaborate:
- You enter your name (and initials) and “assume a signature.” This is just your name rendered is some interesting font.
- 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:
- The user signs within the document — so there is no doubt that it was read or viewed.
- The signer intentionally clicks to agree to each signature area.
- 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 binding power beyond what you can get with regular clickwrap.
Beyond Clickwrap- Ink Signatures
What can improve on clickwrap? You can improve on clickwrap by:
- Intention: Making the user do more to confirm than just check a box. This shows more intention.
- 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 add a box (or multiple boxes) to your web form in which your user can sign their name with a mouse, stylus, or finger.
How can using SecureForm + Ink Signatures make document agreements more binding?
- By signing your name, you are doing more work than checking a box. This shows more intention and can make the contract more binding.
- The signature can be a required field so that the user cannot proceed without signing.
- As the user is signing his/her own name, there can be some identity verification though the signature images.
- 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.
- SecureForm’s GeoLocation feature records the latitude, longitude, and approximate physical address of the user who signed the form when he/she signed the form.
Item 1 speaks to intention. Items 3 through 5 improve the binding of identity to the agreement. This takes clickwrap to the next level and improves the legal enforceability of your terms and conditions.
What type of user agreement process is best for your forms? That depends on the importance of your terms and the degree to which you need to have enforceably binding agreements with your end users. Consult with a lawyer if you are unsure.