You're likely to find a paragraph like this one in most Privacy Policies and Terms and Conditions agreements:
This language is used to make sure that users understand that the rules outlined in the legal agreements must be agreed to in order to use and access the website or the mobile app.
However, you need to make sure that you get active consent from users than a simple paragraph. This goes beyond just a link to your legal agreements in the footer section of your website or within the Settings menu of your mobile app.
You need to make sure that:
- Users are presented with the choice to read the agreements whenever necessary, i.e. when users create an account with your website or mobile app.
- Users should give active consent that they have read, understood and agreed to the agreements.
The most popular way to make sure users always have access to your legal agreements is to place the links to the legal pages in the footer section of your website.
However, just a link to some legal agreement linked to at the bottom of the website isn't recommended!
If you place a notice before users take an action on your website, such as submitting a form, you're providing increased visibility of the legal agreements that your users must agree to:
- You can place a notice with a checkbox.
This is a classic example of the "I agree to" checkbox.
- You can place a notice without a checkbox to inform users that by submitting the form, they agree with the agreements.
The places where you can provide notice of your legal agreements is anywhere you ask a user to do something:
- Create an account page. Any page where the user can register an account on your web site or mobile app.
- Checkout page. You can place a notice right before a user can click on the "Place order" button or "Send order" button.
Even if you place the notices in your website forms, you still need to make sure that you always have a link to your legal agreements in the footer section regardless what page a user is on.
The browsewrap and the clickwrap
A browsewrap agreement is when you place links to your legal agreements somewhere on your website (usually at the bottom).
This is the definition of a browsewrap:
Browse-wrap (also Browserwrap or browse-wrap license) is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a website or downloadable product. In a browse-wrap agreement, the terms and conditions of use for a website or other downloadable product are posted on the website, typically as a hyperlink at the bottom of the screen.
A clickwrap agreement, on the other hand, is when you require users to actively give consent:
- By either checking a box to confirm that they have read and agreed to the terms of your agreements
- Or that that by taking an action - submit a form, register an account - they agree with the terms of your agreements.
A browsewrap agreement is usually unenforceable, while a clickwrap is enforceable. That's the main difference between a browsewrap and a clickwrap agreement.
- In "Specht v. Netscape" case the court said:
[...] a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms
Here's how Zappos informs users of its legal agreements today.