There are established standards for what makes a contract enforceable. But when it comes to
digital terms and conditions (Ts & Cs), the presentation of legal agreements can make all the difference in their enforceability. Your legal agreements must be conspicuously presented. If not, a counsel can easily make the case that the user didn’t properly understand what they were agreeing to.
Many companies will use “
clickwraps” to get their
customers to accept their Terms and Conditions. Clickwrap is a method of getting
customers to actively click a checkbox or button in order to show consent on legal documents. It means that the user has actually clicked “I agree to the terms and conditions and privacy policy.”
Digital terms and conditions requirements
Digital terms and conditions requirements are incredibly important for companies who are starting up. Even though this seems like a sometimes harmless document you can put off creating, if the
company goes under and people file a lawsuit against you, it is one of the first things they will ask to see as an exhibit.
If we want our terms and conditions to be taken seriously, then we need to make sure that they are easy to read. Here’s a few things to keep in mind when creating your own:
- The font should be no smaller than 11 point size
- You shouldn’t use the “I AGREE” button or checkbox for acceptance because it can easily be clicked accidentally.
- There is a space for the user to print or write down information that they may need.
- It is easy to read and doesn’t contain any “legalese”
- You should include hyperlinks if you want users to click on specific pages within your terms and conditions, pdfs, or anything else so that it makes it easier for the user to read.
- By following these guidelines, you can create a well-prepared contract that will hold up in court.
Are Online Terms and Conditions Enforceable?
If you speak to a lawyer, they will tell you that online terms and conditions aren’t enforceable if the user doesn’t know about them. It is important for companies to make sure that
customers are fully aware of what they are signing up for. If there is any doubt in the judge's mind that the
company didn’t follow the law, then they won’t allow them to be enforced.
Since Ts & Cs are not always available at a glance on different devices (desktop computers and mobile phones), we may have to address this by putting our terms and conditions in the footer of our website – which is almost guaranteed to get read every time someone sees it while browsing.
Revealing your terms and conditions ensures that users know what they're agreeing to, and gives them the opportunity to say no. The Terms and Conditions page should be easy to locate on your site (not hidden in the footer or an ‘about us’ page) as well as provided in a useable format (PDFs can be large and hard to download).
It’s also a good idea to build an FAQ page on your website where users can easily access the information they need without being redirected to another website. Should you choose to include it in several places, make sure that one is available for visitors on
mobile devices or tablets as well.
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