When developing a website or app, Terms of Use (also referred to as Terms of Service or Terms and Conditions) are typically an afterthought. Companies know that they “should” have them – the Terms of Use govern the relationship between the parties. But, oftentimes companies overlook one important step – consent.
Generally, there are two ways in which end users “consent” to the Terms of Use for a website or app: continuing to use the website/app (a “browse-wrap agreement”) or clicking a box to affirmatively consent to the terms (a “clickwrap agreement”).
We’ve all been faced with a clickwrap agreement when using websites and downloading apps. It’s the “I agree” that you must click before proceeding (presumably after you’ve read through the 10 pages of legal jargon).
Browse-wrap agreements, on the other hand, allegedly bind a web user through the user’s continued browsing of the site, without having to click anything. The browse-wrap agreement, which often reads “Accessing, browsing, or otherwise using the site indicates your agreement to all the terms and conditions in this agreement” is often the more favorable option for businesses, seamlessly allowing their consumers to proceed without a pesky pop up or additional step. However, companies run the risk of the Terms of Use not ultimately being enforceable against the users.
What constitutes consent?
In a recent case involving Uber, a judge held that there was no enforceable agreement between Uber and its user because user did not agree to the Terms of Service. Uber used a browse-wrap agreement for its terms. The case reinforces that the best practice for getting user consent is through clickwrap – requiring consumers to click “I agree.” Zappos faced a similar issue back in 2012. There, the court also held that the browse-wrap agreement did not require Zappos users to take an affirmative action to show their assent to the terms and conditions.
In both Uber and Zappos, the companies were trying to enforce an arbitration clause against users – to prevent users from bringing class action law suits. Because both companies used the browse-wrap option over the clickwrap, the courts held that the Terms of Service did not provide reasonable notice to its users and that there was no evidence that the consumers had knowledge of the agreement or the arbitration clause within it.
Important tips for businesses
- Make sure your Terms and Conditions and Privacy Policy are written clearly and in an appropriate font size and color
- Always use the clickwrap option to protect yourself
- Make sure the Terms are accessible to users even after they agree to them
- Always notify users about an any material updates in your Terms and Conditions or Privacy Policy
Important tip for consumers
Be careful what you consent to: HUMANCENTiPAD.
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Kelly Weiner is an NYC-based attorney and founder of Law Office of Kelly Weiner PLLC. Kelly provides general counseling on corporate, intellectual property issues, contracts, licensing and dispute resolution. Connect with her at kweiner@kellyweinerlaw.com.
Sharon Kahn is a student at University at Buffalo School of Law and an intern at the Law Office of Kelly Weiner PLLC.