Do Not Hide Terms & Conditions

The courts have reminded website owners time and time again not to bury their Terms and Conditions agreement (also known as Terms of Use or Terms of Service), and to always seek meaningful consent from users for the agreement.

It's recommended that you always ask your users to check a box that says "I agree to the Terms and Conditions..." before you let them register to your website or mobile app and use your services.

This applies regardless of whether you have a website, mobile app, SaaS app, Facebook app, a desktop app or anything else.

Even with there having been countless warnings and dozens of lawsuits given to companies for burying legal agreements, some still find themselves under fire for trying to enforce "browsewrap" agreements.

Browsewrap refers to methods where instead of getting clear, active consent to an agreement, a website etc. simply places links to a legal agreement in the footer of the website and includes a statement in the agreement saying something along the lines of:

By using this site or service, you agree to be bound by these terms. Simply visiting our website constitutes agreement to our terms.

Browsewrap can be unenforceable because it doesn't prompt the user to take any affirmative action that demonstrates consent, or that the user is even aware of an agreement existing.

To get legally binding, valid consent, you must ensure that users are given notice of the terms to which they are to be bound, and then take some overt action to show agreement, such as clicking a checkbox.

Here's an example of how this can look, on checkout screen:

Generic Checkout screen with checkbox highlighted

In the case of Nguyen v. Barnes & Noble Inc the court says the following:

[...] where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on "without more" is insufficient to give rise to constructive notice.

While failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract [...] the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers.

Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.

In addition, the U.S. Court of Appeals for the Ninth Circuit dissuades district courts from enforcing browse-wrap agreements if they find no evidence that the website owner took steps to ensure that users become aware of the terms enforced against them.

For the full court ruling, read Nguyen v. Barnes & Noble, Inc., Court of Appeals, 9th Circuit 2014.

The best way to make your Terms and Conditions agreement enforceable is with clickwrap.

The box that you have to check next to "I have read and agree to your Terms and Conditions and Privacy Policy" or a similar notice is an example of clickwrap.

When users confirm that they have read your website's Terms and Conditions agreement or they are informed that by taking an action such as clicking a box, the users will be bound to your legal agreements.

You can put clickwrap agreements whenever a user is interacting with your site or service in a significant way, such as:

  • Registration of new accounts
  • Log-in pages
  • Checkout pages for ecommerce sites
  • Email newsletter subscribe forms

By placing links on your website and within your app, users will have access to legal agreements whenever they please.

Use both browsewrap and clickwrap to present your Terms and Conditions agreement and obtain active, provable consent to its terms.

Check out our Terms and Conditions FAQ for more helpful insight into these important agreements.