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Clickwrap agreements are online agreements where users agree to the terms by clicking a button. Clicking a button expressing consent is deemed to be acceptance of the terms of the agreement. The most common examples of clickwrap agreements are website terms of use of websites and end-user licences for Services as a Software (SAAS) and applications.
Advantages of clickwrap agreements
Clickwrap agreements are an efficient way to ensure that users are informed of and agree to the terms of the agreement before they use a website or software.
The main advantages are as follows:
Reduced liability: Clickwrap agreements can limit a company’s legal liability by imposing clear terms and conditions on users.
Additional protection: By having users agree to the terms and conditions, businesses can protect their intellectual property and confidential information.
Increased efficiency: Compared to paper contracts, clickwrap agreements can be enforced in real-time, reducing the need for manual reviews and signature checks.
Best practices for clickwrap agreements
Acceptance buttons: Users should be required to click on a button that says “I agree” in clear and concise language. “I agree” button should be clearly visible and easy to find on the page and should not be pre-checked.
Notice of terms: Users should be clearly informed that there are terms and that clicking the button means they agree to the terms. Users must have reasonable opportunity to read the terms in full before accepting them.
Screen design: The language on the consent button and the language of the notice must be consistent with each other. It is advisable to use a font size large enough to be conspicuous.
Easy access: The clickwrap agreement should be linked and accessible on the website or app before a user engages with the product or service. Important terms should not be hidden from the users by placing them in a hard-to-find location. The link to the agreement must be in a place where users are likely to see it. Remember that poor screen design can be a reason for non-enforcement.
Unambiguous terms: The terms should be clear and easy to understand and should not contain any hidden or misleading clauses. To ensure enforceability, it is advisable to avoid technical jargon as much as possible. Important or onerous clauses such as limitations of liability and disclaimers should be clearly highlighted by the use of bold and/or capital letters.
Documentary evidence for the clickwrap process: Documentary evidence of the clickwrap process such as (i) customer identification information, (ii) the granting of clickwrap consent (date and time), (iii) the version of the agreement to which the customer consented, must be retained. The absence of evidence of the time and date of a user’s acceptance of the terms may be grounds for non-enforcement.
Printable / downloadable agreement: The agreement should be printable and downloadable so that the user/customer can review it before accepting it.
