21 November 2019
These legal agreements are very important for defining terms, policies, and acceptable uses of your website or app. However, these agreements are essentially useless if you do not get people to legally agree to be bound by their terms. This is due hugely in part to increased requirements for consent put forth by the GDPR.
While there isn't only one way to get people to agree to your terms, there's a favored method to ensure that your legal agreements are able to be upheld in the event of a legal dispute or if other issues arise.
This favored method of obtaining consent from users over the terms of your legal agreement is known as clickwrap.
Clickwrap, as the name implies, is a method of getting a user to agree to your terms or legal agreements by requiring the user take some form of action, typically clicking the "I agree" checkbox. A user can click a box that's clearly marked as being part of forming an agreement.
For example, before a user is able to create an account on Engine Yard, the user must click on a box next to "I agree to the terms of service" and then must click on the "Sign Up" button.
This makes it very clear to the user that by clicking that check box, the user is agreeing to the terms of Engine Yard's Terms of Service agreement.
Another single-click method involves providing notice close to a "Sign Up" button that lets a user know that by continuing and creating an account and signing up, the user is agreeing to the linked legal agreements:
The clickwrap method can be used on websites, mobile apps, and desktop apps, regardless of the legal agreement presented to users:
Because of this type of method - the clickwrap - is the most preferred method for obtaining consent from users, it's commonly used.
Here are a number of examples from websites that very successfully use this method.
Example from Amazon.com
Before a user can create an account on Amazon AWS and use any of the services provided by AWS, the user must click a box that indicates that the linked terms of Amazon AWS have been read and are agreed to:
You can use the clickwrap to not only obtain initial consent to your Terms and Conditions agreement (or any other legal agreement that you present to users) but also when your agreements change and you want to get consent over the new and updated agreements.
Example from Elance
Here's how Elance lets users know that their Terms of Service agreement has been updated. Elance requires users to check a box to indicate acceptance of this updated version of the agreement:
Example from Mondaq
Before a user can register for a Mondaq account, its Terms and Conditions must be agreed to by checking a box:
Example from Skype
Example from YouTube
Example from PayPal
PayPal uses a check box to obtain agreement from users to a list of stipulations, including a wide range of Policies.
A user must check the box to indicate that the user agrees to those linked agreements and then must click the "Agree and Continue" box which further makes it clear to the user that an agreement is taking place.
Having the action button say "Agree and Continue" is a simple way to be more clear than having the button simply say "Continue" or "Next":
PayPal also requires a second consent from users immediately before the account is actually created.
Single-click methods for obtaining consent are also heavily used by online businesses across the web. While the double-step method (a checkbox and a button) is favored because it ensures that the user is aware of the agreement taking place, the single-click method can be effective too.
Example from BigCommerce
BigCommerce places text directly above a "Create my store now" button that lets a user know that "By clicking below to signup, you're agreeing to our terms of service."
The placement of this text is close to the action button. The text also has a concise and clear phrasing. Users will not overlook it and will understand what it means.
Example from Democrat and Chronicle
Democrat and Chronicle lets its users know that by signing up for the newsletter, they indicate they agree to the Democrat and Chronicle's Terms of Service agreement.
The language in this example is placed close to the form fields and the action button ("Sign me up"), but below these fields and buttons.
Current best practices recommend that this language be placed before the action button rather than after it so that users will see it before clicking the "Sign me up" button:
Example from WeTransfer
Facebook includes this kind of text immediately before and above the "Sign Up" action button that says, "By clicking Sign Up, you agree to our Terms and that you have read our Data Use Policy, including our Cookie Use."
This is a very good placement and conveniently includes links to many different policies that are relevant to the users signing-up for a Facebook account:
Example from Slack
Slack's placement of this informative text is off to the side and not near the action button (in Slack's case here, it's the "Next" button) that a user must click on to continue setting up a Slack account.
This placement is the least favored and effective style of informing users that their actions will constitute agreement because it's too easy for a user to not notice this text.
Mobile apps can, like websites, require a user to tap an "I agree" check box or have an informative text above an action button. Both methods can be effective for mobile apps.
Example from Apple
Apple obtains a double agreement from users for their Terms and Conditions by having a pop-up box open on the user's mobile device screen with a clearly marked "Agree" button, and by also asking the user to click another "Agree" button that appears after the user scrolls to the the bottom of the agreement:
Example from Coinbase
Whenever a user wants to create an account with Coinbase, a more active method of asking for acceptance over a series of legal agreements is being used by Coinbase.
Example from WhatsApp
This is a simple way to obtain consent from users before they use the mobile app, but without any informative text. Current best practices would suggest for a more clear language to be used so that a user knows exactly what she/he is agreeing to (in WhatsApp's case, its WhatsApp's Terms of Service).
Example from Instagram
Example from LinkedIn
LinkedIn also provides a dialog menu for users to conveniently access and review on the spot each of these agreements:
Clickwrap agreements are seen regularly in software installations where a user must take multiple steps showing consent to the software's EULA agreement before the app can be installed.
Example from Apple Mavericks
OS X Mavericks software requires the consent from a user twice.
The software installation wizard steps include a pop-up window at the beginning of installation that requires a user to click "Agree" before being able to continue installing the software.
Example from Microsoft Office
Microsoft Office for Mac requires a user to click "Agree" in a pop-up window where Microsoft's License Agreement for this software app is available for viewing before continuing with the installation:
Example from Microsoft Visual Studio
Microsoft's Visual Studio uses a check box on the opening screen of the app that users must click on before the setup can continue.
Example from Xcode
Xcodebuild requires users to actively type "agree" in Apple's Terminal in order to continue to use the software:
Here's a closer look:
There are a number of different ways that you can request users to agree to the terms of your website, mobile app, or desktop app. You can have Terms and Conditions for your API too.
However, the clearer of an action you require, such as requiring users to check a check box, the more clear and effective the consent will be.
Always make it clear to users that by taking some action, they'll be held to be in agreement with your legal agreements and always provide these agreements to your users for them to view and review at all times.
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.