That’s a (click)Wrap

Who has time to read those pesky terms and conditions anyway? As it turns out…they are worth paying attention to, particularly if you are in a position to be writing them or using them on a website.

If you are a new business owner starting up a website, terms and conditions should matter to you. In particular, the presentation of the terms and conditions to visitors of the website is of great importance. Even if you are just a visitor to a website, the terms and conditions are important. These statements are relevant because as an owner of a website and a visitor to one, you are engaging in a contract with each other. It may seem crazy that merely clicking onto a website creates something of a contract, but it’s true.

Courts have tracked the evolving nature of these contracts. These contracts were originally called “shrinkwrap agreements” from the terms and conditions printed on a paper tucked underneath the shrinkwrap you had to rip open to access a product such as a computer disk program. Ripping open the shrinkwrap manifested assent to the terms of using the product. With the rise of the internet, of course, things became more complicated.

Enter “clickwrap agreements”, which exist in a few varieties. Some of them require clicking through terms and conditions before being able to use the website, but others do not, and it’s the second type that creates issues. Without a click, the terms and conditions are often available via a link on the webpage to be viewed. In those cases, the user is on notice that they are bound by these conditions by visiting the website, even without a click to acknowledge that they have seen them.

Courts have said that these click-less agreement links must be so obvious that anyone using the website would easily notice them, and thus the terms and conditions are not concealed. Companies have gotten in trouble for obscuring these terms with small font and poor contrast, hiding them at the bottom of the page, and even pushing through a payment radio button to add a credit card over top of the terms before the user has the chance to agree to said terms. Courts are not lenient on the websites or apps in these cases; often, the website user wins due to fairness concerns.

One key takeaway: if you are a business starting a website, what can you do to avoid these problems? In short, make the terms as clear as possible. In fact, the option to make them necessary to click before viewing the website or app seems wisest to avoid the claim by users that they did not see the terms. In any case, make the terms impossible to ignore, or you may face the consequences of customers claiming they did not agree to your terms, and courts likely siding against you in the case of a dispute. Happy clicking!

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