Publisher's Note: This column is for informational purposes only, and is not intended as legal advice. Readers should always consult their own attorneys before making legal decisions.
Part 1 of this article can be found in the June 6 issue of UniNews online.
Does Your Web Site Need Visitor Contracts? Part 2:
Making the Contract Stick
by Lance Rose, Esq., UniNews online Legal Affairs Correspondent
Once a webmaster decides to require visitors to agree to its online contract, is there any problem in making it stick? For a while, no one was sure if the so-called "clickwrap" contract, in which the visitor consents online to the contract before entering an online area, would be as enforceable as old ink-on-paper contracts. These doubts are starting to dissolve due to the recent holding in ProCd v. Zeidenberg. In this federal case, the "shrinkwrap" contract used for software sold on floppies and CD-ROMS was held a valid contract between software maker and buyer, even though the buyer did very little to indicate consent. This approach is readily extendible to online contracts.
Those who want to maximize the reliability of clickwrap contracts as a replacement for the paper kind should use a conservative approach. For example, the visitor could be made to scroll through the contract text before he or she can enter the site. At the end, visitors must type "I agree" or click on an "Agree" button before they can proceed. While this approach might put off potential visitors who like to avoid commitment, it's not all that oppressive. Visitors would need go through the procedure only once, and the site operator can let them know that up front to minimize discomfort.
However, many site operators do not want to "force" visitors through anything remotely unpleasant in order to lure as many as possible into the site's internal pages. There is a powerful legal/marketing conundrum at work here: a site protects itself best against legal risks when visitors understand up front that they are agreeing to an online contract, but the site can scare away potential customers (and associated revenues) if that contract is presented to visitors too aggressively. For this reason, legally aware site operators are exploring the use of milder contract procedures, in the hope they will result in enforceable contracts without driving too many visitors away.
One such softer method is to make a first-time visitor type or click "I Agree" on a screen that only tells them that by entering the site, they automatically agree to the site operator's terms and conditions The actual contract language is either available for review right there, or made available afterwards at the visitor's leisure. Even less obtrusively, the operator might place the "automatic agreement" notice on the site's home page with no need for an "I Agree" click; or even put a conspicuous link named "Legal Agreement" on the home page, leading to the contract language stored elsewhere. The problem with these progressively less assertive approaches is that at crunch time (e.g., in a lawsuit), the webmaster may have a hard time proving the visitor ever really agreed to the online contract. If visitors can claim they just kept clicking away until they got into the site, and paid no heed to any "legal" stuff tucked in the corner of some page on the way in, they've got a decent chance of avoiding the contract terms, especially where the visitors are consumers.
Some other important points to remember when making online contracts with visitors:
- Keep records or logs of each visitor's agreement to the online contract, and store them in a secure place.
- Remember that online contracts are only good against those who agree to them. For example, they have no effect against an outsider libeled on your site, and of uncertain effect against someone else using the account of someone who did agree to the contract.
- Finally, don't expect online contracts to override consumer protection laws and policies. Contract terms contradicting public policy could be voided, such as terms contradicting the FTC's "mail order rule" for goods ordered online, or terms denying buyers any remedy if the product is defective.
Lance Rose (firstname.lastname@example.org), an attorney and writer currently practicing law in Scottsdale, AZ, has worked in the computer and information law fields for over 15 years. He is the author of NetLaw: Your Rights in the Online World (Osborne/McGraw-Hill), operates the NetLaw web site at http://www.netlaw.com, and has written extensively for print publications including Wired, Boardwatch Magazine, and Internet World.
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