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 can:
Check out the TermsFeed Free Tool Solution - I Agree Checkbox and enforce your legal agreements in 3 easy steps.
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 placing a link to some legal agreement 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:
This is a classic example of the "I agree to" checkbox.
The places where you can and should provide notice of your legal agreements is anywhere you ask a user to do something, for example:
Even if you place links to your legal agreements in these places, you still need to make sure that you always have a link to your legal agreements available to user at any time. The best way to do this is by putting a link in the footer section of your website. This is because the footer will be available to the user regardless of what page they're on.
Browsewrap Versus 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, such as by checking a box to confirm that they have read and agree to the terms of your agreements, or clicking an "Accept" button next to a statement that informs the user that by clicking, they are accepting the terms.
A browsewrap agreement is usually unenforceable, while a clickwrap agreement usually is. That's the main difference between a browsewrap and a clickwrap agreement.
[...] 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.
To summarize, the main difference to be aware of between browsewrap and clickwrap is that browsewrap doesn't require a user to do anything but visit the website for the site to assume consent to terms, whereas clickwrap requires the user to do something to show consent.
Always go with clickwrap, as it's enforceable and more legally compliant.
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
18 December 2020