Considerations with Different Types of Agreements The proper test for whether an online agreement is enforceable is whether it provided conspicuous notice and the visitor unambiguously assented to its terms. Practically speaking, there are some simple principles to consider with each type of agreement you can have in place. • Clickwrap : When a user is required to click one button that expressly says they assent to the terms of use by clicking that button. That user will more likely be bound than if no click were required. • Browsewrap : When there is no click required on a website but it nevertheless provides some notice of its terms of use somewhere on the website. Such an arrangement could reduce the chances of binding a user if challenged in court. • Scrollwrap: When you require the user to scroll through the entire terms of use before clicking a button confirming the user’s assent. This would enforce the arbitration agreement for users who simply browsed the website without making a purchase, and thus providing a shield from online wiretapping claims alleging unlawful collection of data while browsing. A clickwrap that does require scrolling will be generally enforceable as well, but not as strong as a scrollwrap. Nevertheless, if a business is inclined to use a sign-in wrap instead, lessons can be learned from this ruling. 3 Considerations For Sign-In Wrap Agreements But what if you want to incorporate a sign-in wrap agreement, like the one in the ClassPass case? This is where a user does not click a button affirming their assent but rather clicks a sign-up button after reading language indicating that they agree to such terms by signing up. This type of arrangement may yield advantages to businesses, generating more hits and driving more sales than a clickwrap. However, this arrangement exposes a company to risks of unenforceability – as ClassPass learned the hard way. The main lesson from this ruling? It is critical to use straightforward design elements combined with language plainly explaining the outcome of a website visitor’s click when seeking to bind users to online terms of use or other agreements. Here are three suggestions to overcome court resistance to enforceability. • First, a reviewing court will pay attention to the sequential order of screens accessed from the user’s perspective beginning from the home page. The finding of defects on Screen 1 proved fatal in this case, as the Court made clear that Screens 2 and 3 could not have cured the absence of conspicuous notice on Screen 1. Thus, it is most important to provide conspicuous notice on the first screen. Including consistent notice language on each screen will also provide greater chance a court finds conspicuous notice. • Second, the language must be clear in explaining what the user is agreeing to and how they manifest their assent, describing that the user agrees to the terms of use by clicking on that button and that those terms include an arbitration provision and a class action waiver. In the
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