Limiting Risk By Requiring Website Users To Accept Your Terms Of Use

If you conduct business online it is essential to have strong, binding terms of service.  Simply providing a link to those terms on your website, even if it is conspicuous on every page, is not enough.  To protect themselves, businesses should consider implementing clickwrap agreements.  A clickwrap agreement requires a user to view terms of use and to click to accept those terms before proceeding.  Many websites simply provide their users with a link at the bottom of every page to their terms of use but do not force the user to view or explicitly accept the terms; this is called a browserwrap agreement.

The difference in enforceability between these two types of agreements is stark and founded in long-standing contract law.  When asked to hold a party to a website’s terms of use, courts ask the question:  Did the user have reasonable notice of the terms and a clear acceptance of those terms?  For clickwrap agreements the answer is most often yes, for browserwrap agreements the answer is typically no. 

For example, in Costar Realty Information Incorporated v. Field, the District Court of Maryland noted that “clickwrap agreements. . . have been routinely upheld by circuit and district courts.”  The key to this holding was that users were required to “affirmatively click a box on the website acknowledging receipt of an assent to the contract terms before he or she [wa]s allowed to proceed using the website.”  612 F. Supp. 2d 660 (D. Md. 2009).  In contrast, in Be In, Inc. v. Google Inc., the Court held that the presence alone of terms of use could not convert usage of a website into acceptance of an agreement; the alleged browserwrap agreement was not enforceable.  2013 WL 5568706 (N.D. Cal. Oct. 9, 2013).

As you design your website and implement your terms of use, there are four key elements to consider to best protect your business:

  • Present the user with the Terms of Use and require the user to scroll through them.
  • Require the user to click a button that is labeled with clear language indicating that the user is accepting contractual terms (e.g. “I accept”).
  • To further clarify that the user is accepting an agreement, require the user to check a checkbox labeled “I accept the terms and conditions.”
  • In your terms and conditions, include language warning the user that by clicking “I accept” they are accepting the entirety of the terms of use. 

If you want to talk to us about how these considerations apply specifically to you and your website, please don’t hesitate to reach out to us.     

Greg Ewing is an attorney with the Litigation practice group at Davis, Agnor, Rapaport & Skalny, LLC.  For questions about this article or other questions about Technology Law, please do not hesitate to contact Greg