The enforceability of clickwrap contracts remains a topic of ongoing debate in courts as factors such as the visibility and clarity of contract terms, the design and presentation methods, and the conscionability of terms often come under intense scrutiny during legal proceedings.
Besides meeting the legal requirements for digital contract formation, legal teams also have to worry about the relatively disruptive impact of clickwrap contracts on user experiences.
In this guide, we will discuss the various elements that make an effective clickwrap agreement, alongside proven tips you should incorporate to design clickwrap contracts that are user-friendly and enforceable.
The basics of clickwrap contracts
A clickwrap contract, also known as a click-through agreement or a click-to-accept agreement, is a type of digital contract that allows prospects to enter into legally binding agreements with companies by clicking a button, checking a box, or taking other similar actions to indicate their acceptance of the contract's terms and conditions.
It comprises a handful of elements, including:
- A checkbox that must be ticked before proceeding with the signup process
- A statement indicating that checking the box demonstrates agreement with the company’s various terms and conditions
- A hyperlink to the terms of use, acceptable use policy, customer terms, and privacy policy
- The signup button, which only becomes active after the user checks the box
These elements are put together to ensure the users have a complete awareness of the company’s terms and offer their consent before accessing its products or services.
“An even stronger type of clickwrap requires the user to ‘scroll’ through the user agreement before they have the ability to accept it. The more steps the user must take to ‘agree,’ the stronger the odds of enforcing the agreement.”
~ Sterling Miller, CEO and Senior Counsel, Hilgers Graben PLLC
Ten Things: Web User Agreements
Also read: Clickwrap Agreements—The Ultimate Guide
Where can you embed your clickwrap agreements?
Clickwrap agreements can be used in virtually every digital platform, including eCommerce websites, software applications, social media platforms, online services, and more.
In eCommerce websites, clickwrap agreements are commonly found on the checkout page during the purchase of goods or services. Users are typically presented with terms and conditions, return policies, and privacy agreements that they must accept before completing their transactions.
In software applications, clickwrap agreements are typically presented during the installation process. The terms typically appear in a scroll box that readers need to read through and accept before accessing the next phase of the installation process.
The general concept around clickwrap agreements, regardless of where they're embedded, is to ensure that users know the existence of terms and conditions and are willing to abide by them before engaging with an organization.
Also read: Are Clickwrap Agreements Legally Binding?
Pro tips for designing an effective clickwrap contract
When designing clickwrap contracts, there are several elements and approaches you need to incorporate to ensure that they meet legal requirements and also remain non-disruptive to user experience.
We’ve discussed them below.
#1 Use a contrasting background
To enhance visibility, the page section containing the clickwrap agreement should have a contrasting background. This makes it stand out from the entire page, so it's easier to catch your user's attention.
Additionally, your hyperlink has to be recognizable as a hyperlink. You can do this by giving it a different color and underlining it.
If the background doesn’t provide enough contrast, it may be difficult to prove in court that the clickwrap was noticeable to the user.
#2 Use legible fonts and incorporate simple language
Ensure your notification statement, as well as your entire terms and conditions, are written in eye-friendly fonts. Generally, Sans Serif fonts are more readable on digital interfaces. So, using them in your clickwrap agreement texts can enhance their readability. Popular examples include Open Sans, Arial, Calibri, and Roboto.
Also, 12 points is the minimum recommended font size for readability on digital interfaces. It is important to incorporate this when writing your clickwrap agreements.
Furthermore, your clickwrap agreement should be written in simple language. Avoid using technical jargon as much as you can. This keeps you safe from misinterpretation.
#3 Don’t precheck your boxes
While it is not illegal to use prechecked boxes in the US, it is often prone to disputes.
Instead, present all the options to users unchecked and allow them to actively select the checkboxes themselves. This ensures transparency and fairness and allows users to make an informed decision about which terms they are accepting.
#4 Incorporate a mechanism for customer support
Including a mechanism for customer support and inquiries in your clickwrap contract can enhance user experience and ensure that users have a way to seek clarification or assistance if needed.
Create a section within your agreements pages and populate this with relevant contact information, expected response timeframes, and available channels for customer support.
#5 Optimize for mobile users
Mobile screens have limited space, so it is important to put that into consideration when designing your clickwrap contracts.
Ensure that your clickwrap contract adapts well to different screen sizes and orientations. A responsive design will help maintain readability and usability across various mobile devices.
Avoid using fixed-width tables, excessive line breaks, or complex formatting that may cause layout issues on smaller screens.
Furthermore, ensure you test the clickwrap contract design on different mobile screen sizes, operating systems, and browsers to provide a consistently optimal experience for all users.
#6 Make plans for record-keeping
“Your brand is your integrity — and you don’t want to be the one backtracking to try and prove something with a loose collection of facts across many systems. You need to design your system right from the getgo, or find an out-of-the-box solution that takes out the guesswork.”
~ Eric Prugh, Chief Product Officer, Authenticx
3 Website “Terms of Service” Design tips to never do
Ultimately, how you designed your clickwrap agreement won’t matter if you can’t store and access it efficiently.
Evidential record-keeping is a mission-critical component of an effective clickwrap agreement, as that’s how you get to prove in court that a certain user willingly consented to your terms and conditions before using your products and services. You need to incorporate a system that houses your entire contracts in one location.
Also read: Tips to Store Your Contracts Effectively
Rather than having one tool for designing clickwrap agreements and a completely different tool for keeping records, you can simply leverage a consolidated platform like SpotDraft CLM, which gives you access to both functionalities in one unified ecosystem.
With SpotDraft’s storage solution specifically designed for contracts, you can easily track critical data points related to the clickwrap agreement, like name, IP address, location, timestamps, device information, etc.
Along with its robust security and access control features, SpotDraft also allows you to implement version control and audit trailing, so you can have accurate records of the user’s original acceptance as well as information about updates and future agreements.
“I have seen a demo of SpotDraft’s CLM technology and they should be on your short list of vendors to talk to about a contract management system.”
~ Sterling Miller, CEO and Senior Counsel Hilgers Graben PLLC
Ten Things: Cool Tech for In-House Counsel
Also read: A Quick Introduction to eSignatures
Wrapping up
Designing an effective clickthrough agreement requires keen attention to multiple factors influencing its enforceability and user acceptance. But by implementing the tips discussed above, you will notice remarkable changes in the effectiveness of your clickwrap contracts.
SpotDraft’s clickthrough solution is built to make the process of creating cliockthrough contracts as hassle-free as possible. The platform lets you seamlessly embed clickthrough agreements in your websites, apps, and digital devices. The result? You will be able to close standard web agreements ten times faster!
Check out SpotDraft Clickthrough here.
