If you do business using the internet, you want to ensure your internet contracts are enforceable. To do that, terms need to be presented in such a way that users have reasonable knowledge of them.
Your internet agreements may cover a range of terms including allowable use of the site, privacy policies, subscriber agreements, terms of sale, and credit card agreements. These agreements can impact where a lawsuit is adjudicated and whether arbitration is mandatory, among other things.
How you present those contracts to your customers and users has an impact on whether the courts deem them enforceable. For example, in a case against Amazon, the company’s arbitration agreement was ruled unenforceable because it was buried in an obscure section of the website.
Uber dealt with a similar situation this year when a Brooklyn judge ruled its arbitration clause was buried so deep in legal language that app users could not be expected to find it. “A registrant may complete the process without seeing or even being aware that there are other clickable buttons leading to a screenshot containing Uber’s terms and conditions,” the judge said.
In internet terminology, a “clickwrap” agreement involves the use of a click-box, requiring the user to acknowledge terms and conditions before proceeding. A “browsewrap” agreement is a term statement, typically linked from the homepage, which the user does not have to visit to use the site. Courts have generally declined to enforce browsewrap agreements, indicating they do not provide users sufficient notice of contract terms.
When evaluating whether your terms and conditions would likely be upheld in court, determine whether those conditions are readily apparent to who anyone who engages in an online transaction with you. The information should be as prominent as other information on your site and clearly presented to customers before purchase. A click-box acknowledgment is ideal. Even if someone doesn’t bother to actually read your terms, they will likely be bound by them.