Category Archives: End User License Agreement

UI/UX Invalidated your Contract

Online contracts are only effective if implemented correctly.   I’ve written on different processes for implementing online contracts, which is often easier to accomplish in the web context.  In the mobile context, implementation is challenging given the need to balance user experience with contract formation.

How you structure contract formation in your mobile application involves negotiation between the UI/UX team and legal counsel and a balancing of user experience against the risks of the contract unenforceability.  With millions of DAU, the risks are enormous.

A recent case illustrates this risk and shows that even sophisticated startups can run the risk of a weaker contract formation process and be burned.  Lyft presented users with this acceptance screen:

LI Image

It includes the typical web approach to contract acceptance, with a check box stating: [I agree] to the Terms of Service (link).  Recently, a NY court determined that this process did not clearly indicate to users that a contract was being agreed to.  The combination of a series of “Next” screens, the small size of the contract formation text (relative to the large, pink “Next” button) and that the contract was presented in the context of an unrelated phone number request all contributed to the court’s conclusion that users were not sufficiently notified of what they were agreeing to and, as a result, did not accept the Lyft Terms of Service.

Luckily for lyft, prior to the lawsuit, a new contract formation process was implemented, one I’ve advocated for myself:

One mobile approach is to present the agreement to the user, require that they scroll through the agreement and, once scrolled through, the user is presented with the following button at the bottom of the page:  [I agree] to the Terms and Conditions.

Take away:

  1.  At a minimum, mobile applications should have prominent language indicating that a contract is being presented to users (ideally as a separate screen labeled “Terms of Service” or similar).
  2. Contract language should be noticeable and not blend into the background as a user registers for the application.  Try to alter the flow of the registration process so the user recognizes that something new is occurring.
  3. Any button on the contract page should state “I agree” or “I accept”, rather than “Next” and this button should not overwhelm the contract link.

In my opinion, the scrolling process described above is one of the better approaches for implementing a contract into a mobile application.  Other approaches are available but your UI/UX team needs to work with legal counsel to ensure that design considerations do not overwhelm contract enforceability.

Implementing Terms of Service and Other Electronic Agreements

All too frequently, Terms of Service, Terms of Use and End User License Agreements (see our post on the differences between each) are found unenforceable when challenged in court because the agreements are not properly implemented.

To simply describe the implementation process (see our post on the technical aspects):

  1.  Present the agreement to the user; then
  2.  Require the user to affirmatively agree, usually through a click, to the agreement.

In the web context, implementation typically looks like this:

[Check box] I agree to the Startup Company Terms and Conditions (linked to the terms and Conditions)

[Continue] (or similar language, such as “Purchase” etc.)

In the above implementation approach, the user cannot proceed unless they check the box and click the button at the bottom of the page.

In the mobile context, implementation is more challenging given the need to balance legal implementation and user experience.  While the above approach can work, it may not be ideal from a UI/UX perspective.

One mobile approach is to present the agreement to the user, require that they scroll through the agreement and, once scrolled through, the user is presented with the following button at the bottom of the page:

[I agree] to the Terms and Conditions.

Given the differences between each mobile application, agreement implementation on mobile takes many forms and the above approach may not work for you.

Spending the time to determine the most effective way to implement your electronic agreements is vital as the agreements are worthless if found to be unenforceable.

Incorporating Online Agreements into a Printed Contract

While many agreements are entered into online, some online companies continue to operate partially offline.  Challenges arise when offline contracts require agreement to an additional online contract, such as a Terms of Service.  This is not to say that offline contracts can’t incorporate online contracts, rather, the online contract must be properly presented to the user signing offline to be enforceable.

When integrating an online contract into the terms of an offline contract, include a clear call-to-action on the part of the signatory.  This is a statement that signing the contract indicates acceptance of the online contract OR to only sign the contract if the signatory agrees to the online contract as well.  Ultimately, you want the signatory to indicate acceptance of the online contract clearly and in an informed fashion.

What calls-to-action don’t work?  A recent U.S. court case considered a link, above the signature line, to the terms and conditions (“Download Terms and Conditions”) and determined that this was insufficient to establish acceptance of the online contract.  As such, the mere existence of a hyperlink, without anything more to draw attention to the link, does not establish acceptance of an online contract.

Admittedly, while this post is more technical than most we put online, our goal is to remind our readers that caution should be exercised when trying to incorporate online contracts into the acceptance of an offline agreement.  While not impossible, contract language is pivotal to ensure enforceability of the online contract.

 

How to Implement Electronic Signatures

Online agreements require an electronic form of your signature, whether you click “I agree” or use a digital version of your offline signature.  Electronic signature laws in the U.S. and Canada do not address the correct signature format.  Instead, these laws focus on the correct process for creating an enforceable signature.

Three key considerations guide the electronic signature process:

1.  Identification

How do you identify the signatory?  In the case of a prospective user agreeing to a Terms of Service, identification may come in the form of an email address, first and last name and IP address.  Given the impersonal nature of online agreements, the identification challenge is establishing that signatory is, in fact, the signatory.

2.  Intention

How do you establish intention to sign?  Intention could be established through a digital version of your offline signature applied to a document or a user clicking “I agree.”  Ultimately, the user must understand what they are agreeing to and that they are, in fact, agreeing.  For example, placing the “I agree” button after the agreement provides the user an opportunity to understand the agreement before being asked to agree to it.

3. Integrity

How are electronic signature records retained to ensure originality and ease of production? Integrity may be established through a fixed user acceptance process whereby any user, in order to access a website, was required to accept certain terms.  Alternatively, in the case of a more traditional signed agreement, the agreement copy was retained in a locked file format, with date and time of signature logged.  In both cases, establish an electronic audit trail.

While there is no correct type of online signature, there is a correct process for online signatures that should be considered whenever an online agreement is required.