When a person uses a website, makes a purchase from it or takes some other action, said action constitutes a legal transaction. You, the website owner, want to form a contract with the visitor to protect your rights. You accomplish this goal through terms and conditions for your website.
Why is this important? Well, consider a simple scenario. Let’s assume you work out of Los Angeles. A visitor to your site buys a product, claims it doesn’t work and decides to sue you for it. The visitor lives in Chicago. Where should the lawsuit be heard?
If you are smart, the terms and conditions should include a forum choice clause. This language would detail that any unhappy customer must file any legal dispute in Los Angeles.
If the terms are found to be binding on the visitor, they will have to travel from Chicago to Los Angeles to pursue you legally. This language alone will probably end the lawsuit in your favor.
To form a contract with your site visitors, you need to use something known as a clickwrap agreement. This agreement is written out on a stand-alone page of the site. The visitor is then required to click an “I Agree” box indicating they have read and agreed to the agreement.
Most websites fail utterly in this regard. They embed a small “terms” link at the bottom of their site and assume it binds the users of the site. This approach is known as a browsewrap agreement. It is frowned on by most courts.
Why is a clickwrap agreement valid when a browsewrap agreement is not? It has to do with a legal concept known as acceptance. Acceptance boils down to whether there is an indication the visitor to a site has affirmatively indicated their acceptance of the terms. In the case of the clickwrap agreement, their click on the “I agree” box is affirmative action. There is no such action with the browsewrap agreement, so it gets short shrift.
A. Browsewrap Agreement Failure
In ruling the terms of Zappos invalid, the judge in the case noted:
[In Re Zappos, p. 14]
Zappos now faces a class action lawsuit. It will end up spending millions to settle the case.
If you are feeling smug because you already are using a clickwrap agreement, you might want to take a deep breath. The use of this type of contract does not mean you can go nuts with the language included in it.
One area where clickwrap agreements are running into problems is with language regarding amendments. Most include clauses indicating the site has the right to change the terms whenever it likes.
This type of language will invalidate a contract. Why? If you can modify the terms of an agreement at any time, you don’t have a contract. A contract is a fixed transaction. When the parties have not set the conditions in concrete, courts will rule the agreement is “illusory” and invalidate it. An example can show how this might play out in the real world.
Imagine you sign up for an app for your phone. Now image the app could change the price at any time, including AFTER you purchased the app. How would you react to getting a notice a month after buying the app that you owed another $90? Probably not well.
A clickwrap agreement now represents the standard for online contracting. If you own a website, drop me a note to learn more about how to implement one on your site as well as the language you can and cannot include.
Richard A. Chapo, Esq.
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