There’s still some hostility from the court system, and the public at times, on the enforceability of browsewrap and clickwrap agreements. Having an enforceable license for your website, software or mobile application is of the utmost importance.
The ABA Committee on Cyberspace Law provided general rules to ensure your online agreement is enforceable:
- The user must have adequate notice that the proposed terms exist;
- The user must have a meaningful opportunity to review the terms;
- The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and
- The user must, in fact, take that action.
I fully agree with the above. Notice, notice, notice is so important. But not just any notice. You need to ensure that the notice is reasonable, that is that a reasonable person using your software/website/application would understand that by taking a certain action (clicking or continuing use of the site) it renders the agreement binding on them. My reading of the case law on shrinkwrap, browsewrap and clickwrap agreements made me come up with my own list in addition to the ABA Committee’s pointers:
- Create an easy to read, reasonable license that follows industry norms;
- Give the user reasonable notice that the license exists;
- Make sure the notice is CLEAR AND CONSPICUOUS
- Colors, size, font, placement, timing, etc. all relevant. Don’t “bury” it. Get it in front of the user’s faces.
- Let the user read the full license if he or she so chooses (scrollable pop-up being preferred), prior to acceptance (click or use);
- Opt for clickwrap over browsewrap if possible.