Best Practices for Designing Clickwrap Agreements

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 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 methodology, 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. 

This blog covers some common mistakes businesses make when setting up their clickwrap agreements and best practices to help make sure the clickwraps will be enforceable when you need them most.  

Avoid browsewraps that are 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. Because consent is implied and not actually expressed in these browsewrap agreements, it is difficult to prove customers have actually consented to the terms. As a general rule, clickwrap agreements are more likely to be enforced than browsewrap agreements because clickwraps provide clear notice and capture expressed consent from users.

Best practices

• 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.

Employ unique 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 have been unable to enforce clickwrap agreements that were presented on a sign-in page without enough visual distinction (i.e. same font color, no underline or italics). 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 a larger or different font, and making it accessible from multiple locations on the webpage.

Best practices

• 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 Americans with Disability Act (ADA) and Section 508 of the Rehabilitation Act requirements so your customers with visual impairments or other disabilities can access these agreements.
• Present clickwrap agreements in a responsive experience for multiple form factors, such as for tablets and mobile devices. 

Users must explicitly express consent when agreeing to terms

Courts do not look kindly to 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. 

Best practices

• Include language on the screen indicating that acceptance of the website legal agreement is required to proceed with its clickable transaction. The “I accept” language has generally been 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.

Document evidence of consent and maintain a detailed audit trail

Some companies may think their clickwrap processes are sufficient without documenting evidence, as customers cannot use their services and goods 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.

Best practices

• 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. Also, 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. 

Using a proven clickwrap solution can help mitigate your legal risks when it comes to deploying and managing your clickwrap agreements. DocuSign Click is an easy-to-use, simple-to-deploy clickwrap solution that lets you securely capture customer consent to standard terms with a simple click, lower costs and risk, while improving the customer experience. It captures a complete audit trail, including date, time, and other critical information, so you can document evidence of the consent in the event of a dispute.

Read Four Clickwrap Pitfalls and How to Avoid Them to see case studies of organizations who have been faulted and taken to court for having poor clickwrap practices. 

This blog post is an excerpt from an article originally authored by Neel Chatterjee, partner and Victor Wang, associate at Goodwin LLP and published by Law360. 

This blog post is offered for general information purposes only. It does not constitute, and is not a substitute for, legal advice.