Online training and contract execution | Burr & Forman


How often do you shop or engage in other activities online? If you are like most people in the 21st century, the answer is “all the time”.

Businesses expect to trust the electronic contracts that consumers enter into through online transactions, including arbitration agreements and other terms of use. But companies don’t always succeed in doing this. This article describes company practices and procedures to help ensure the enforceability of online contracts.

There are several types of online contracts. Clickwrap agreements are agreements in which users click “I agree” to agree to the terms. Scrollwrap agreements are where users must scroll to the end of the document before they can click “I Agree” to agree to the terms. The clickwrap and scrollwrap agreements are systematically applied by the courts, as long as they are presented to the consumer in a format where it is clear that by clicking on “I accept”, it means an agreement on the contract in question. Browsewrap agreements are agreements in which users agree to the terms simply by using the website. There is no checkbox for consumers to indicate their consent. Instead, consent is implied depending on the circumstances. Browsewrap agreements are scrutinized by the courts and are not consistently enforced.

The case of Meyer vs. Uber Technologies, 868 F.3d 66 (2d Cir. 2017), demonstrates the elements of a binding clickwrap agreement. In that case, the court applied Uber’s terms of service, explaining that the notice of the terms of service was reasonably visible to consumers and that the manifestation of assent was unambiguous. The court explained that while the reasonableness of the notice is a factual inquiry, a court may nonetheless determine that the notice of inquiry has been established in law in certain circumstances. The court described the presentation of a binding clickwrap agreement:

The payment screen is uncluttered, with only fields allowing the user to enter their credit card details, buttons to create a user account or to connect the user’s pre-existing PayPal account or Google Wallet to the account. Uber, and the disclaimer that “By creating an Uber account, you agree to the TERMS OF USE AND PRIVACY POLICY.” The text, including hyperlinks to the terms and conditions and the privacy policy, appears directly below the registration buttons. The entire screen is visible at once, and the user does not need to scroll past what is immediately visible to find a Terms of Service notice. Although the sentence is in a small font, the dark print contrasts with the bright white background, and the hyperlinks are blue and underlined.

Meyer, 868 F.3d at 69-71. The court described with approval the following image from the screen:

Identifier. This successful application of a clickwrap agreement contrasts with the unsuccessful application of Browsewrap agreements in many cases.

In addition, the links were displayed in the “same size, font and color as most other non-significant links”. In re, 893 F. Supp. 2d to 164. Additionally, the website did not redirect users to the terms of service during times when users specifically interacted with the website by entering their individual information, for example when creating a website. account, login to an existing account or create an account. purchase. Identifier. The court concluded that “[n]o A reasonable user would have reason to click on the Terms of Service, even those users who alleged that they clicked and relied on statements found in adjacent links, such as the site’s privacy policy. Identifier. The appeals court said the links were not apparent. This is because whether terms of use and similar agreements are enforceable often depends on whether they were “obvious” to give rise to implied consent.

Some good practices emerge in the context of the above cases and other similar cases:

  • Use clickwrap agreements, instead of relying on general Browsewrap agreements;
  • The terms of use must be near an “I agree” box to click on.
  • Consider using language in the click box that also indicates an element of the terms of service, for example, use “I agree” versus “Create an account”. While “Create Account” may be effective in indicating consent to the terms of service based on link visibility, proximity to click box, and other relevant factors, clear assent language increases the likelihood of application.
  • The links to the terms of use should be clearly visible, for example, in a different colored font, preferably the most common blue link, underlined; a clean layout of the link, free from distractions from many other similarly styled links on the same web page; and a legible and noticeable font size to grab the attention of users.
  • Terms of Service available on each web page.

These factors should be taken into account when designing a website that seeks to create binding contracts with consumers and other people who may interact with the site.

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