Most websites today have, at the very least, a set of terms and conditions. These terms and conditions, sometimes referred to as terms of use (TOU) or terms of service (TOS), govern the relationship between the website operator and the website member or visitor. Besides terms and conditions, websites should also have a privacy policy, and possibly even a copyright or other intellectual property policy. Online contract attorneys agree that having these agreements is better than not, however, it is critical that these website agreements are properly implemented in order to make the terms legally binding and enforceable.
In the past, and still to this day, website owners would simply place links to the website agreements at the bottom of the website. Website visitors and/or members could simply browse these agreements as they sought necessary. As such, these types of online agreements are typically referred to browser wrap agreements. Unless all browser wrap agreements contain language that states access to and use of the website is the website visitor’s manifestation of assent to the terms within the web agreements, these may not be the most enforceable type of online contract; see Hines v. Overstock.com. The reality is that most people do not access these agreements or privacy policies, let alone read them. As such, it is not out of the question for a website visitor and/or member to claim that the agreement is unenforceable, and that the terms are not binding upon him or her.
In order to overcome this type of defense, many website owners began using what are known as clickwrap agreements. In particular, a clickwrap agreement is one where a website visitor must click “I Agree” or “I Accept” before being able to access and utilize the website offerings. The clicking of the button can be tracked by the website owner, tied to a particular user name and/or IP address, and used as evidence of the visitor’s agreement to the terms of the online or ecommerce contract. Website owners are well-served to utilize clickwrap agreements rather than browser wrap agreements.
Ultimately, additional safeguards can be implemented by a website owner so as to increase the likelihood of enforceability of their terms and conditions, privacy policy, copyright policy, or other website agreements. For example, upon a user signing up to become a member of a particular website or a visitor accessing the same for the first time, the website can display a clickwrap agreement. In addition, emailing a copy of the website agreements further confirms that the user was provided the agreement and agreed to it based upon continued access of the website. In addition, changes to the website agreements, TOS, or TOU, should be conspicuously noted to website visitors, and ideally agreed to via an online clickwrap agreement. In addition, an effective date can be utilized to note the last changes to a particular agreement. Ultimately, while website owners, and possibly their marketing department, may prefer to make the user experience as seamless as possible without the perceived headache of legal jargon, should a legal issue arise a website owner is well-served when it can establish that the online agreements were affirmatively agreed upon by the user and rely upon the same to establish whatever their case may be.
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