Startup and video game law, from a Canadian and U.S. perspective
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.