Clickwrap Agreements: Are They Enforceable?

Louis Balla
Louis Balla
Louis is the Co-Founder of Anapact and partner at Nuage, a top rated ERP consulting firm based in Venice Beach, California.
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The Internet is a vast and wonderful place, rich with information that can be accessed with just a tap of a finger. However, while the world wide web is chock full of accessible resources and data, many fail to realize it is also a virtual landscape full of contracts and legalities.

Whether creating an account on Facebook, posting photos and videos on Instagram, or connecting with colleagues on Linkedin, you will be asked to read the terms and agreements and click the “I Accept” button to proceed.

The agreements you’ve formed on the Internet aren’t just there to make it harder for you to access a page. On the Internet, where most of everything is accessible and attainable, it’s crucial to officially give your consent in the form of contracts, such as a clickwrap agreement.

What Is a Clickwrap Agreement?

Also known as a click-through, sign-in wrap, or shrinkwrap, a clickwrap agreement refers to an online contract in which a user agrees to the terms and conditions by clicking a button or checking a box that says “I agree.”

The clickwrap agreement is just like any other contract, except that the act of signing is replaced with the act of clicking. This agreement form can be created through automatic contract drafting, making a fast and easy way to present agreements to signers.

Instead of having to negotiate with each user individually, click-through agreements allow companies a simple way to engage in a contract with customers for several web activities, such as:

  • Installing a mobile app
  • Connecting to a wireless network
  • Using a website
  • Registering a social media account
  • Purchasing a product or service online

Will a Clickwrap Agreement Hold Out In Court?

To put it simply, yes, clickwrap agreements are enforceable as long as they are designed, presented, and tracked in compliance with the best practices. Although they’re pretty different from a standard contract, they are just as enforceable.

For a click-through agreement to be considered enforceable, it must include these six components:

1. Active Affirmative Consent

Users must actively click “I agree” to the Terms of Service before being allowed to proceed with their requested services. Requiring the user to check a box is the best way of affirming that they saw, understood, and accepted the terms of the company.

2. Reasonable and Prominent Notice of Your Terms of Service

Clickwrap Terms of Service must be displayed prominently before it can be considered enforceable. Make sure to have the name of the agreement be easily identified by the reader by having it written in an eye-catching font and color.

3. Digestible Agreements

Online legal agreements aren’t the easiest to understand, especially to the average person. How is a user supposed to give active consent if they don’t know what they agree to?

Your clickwrap agreement must be written in a way that anyone can understand and give consent to. Although the average person should easily comprehend your contract, it doesn’t mean that you can exclude some terms that the user is charged with knowing!

4. Refraining From Abuse of Power

Since users can only click “agree” or leave the site, you will have more bargaining power, but this doesn’t give you the right to exploit it. Demanding the user to give up too much just to use the site will result in your clickwrap agreement being deemed unenforceable.

5. Distinguishable Consents

If you have controversial terms in your agreement, make sure that any user can read it to decide whether to give consent for that purpose or not. The clearer and more distinguishable your terms and consents are, the better!

6. Back-End Records and Version Control

To enforce your clickwrap agreement, you must manage back-end records of acceptance and produce an audit trail of official versions. To increase your clickwrap enforceability in court, it’s essential to track acceptance data such as time of acceptance, version of the agreement, and other data.

Conclusion

Several agreements can be delivered as a clickwrap agreement. People may not notice it, but everyone signs contracts on most sites that they interact on by clicking on the “I agree” button. To implement your agreement and ensure that they’re enforceable, keep in mind the components to consider.

If you’re looking to create a clickwrap agreement that’s enforceable in court, leave it to Anapact to make things easy for you! This automated contract drafting software documents and manages contracts while making them dynamic and reportable. Get a demo today!

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- About the Author

Louis Balla
Louis Balla
Louis is the Co-Founder of Anapact and partner at Nuage, a top rated ERP consulting firm based in Venice Beach, California.