Best Practices – Wrap Terms and Conditions

Wrap terms and conditions, such as clickwrap and browsewrap agreements, play a pivotal role to digital based businesses. They allow businesses to streamline the process of obtaining user consent to legal terms in an efficient and scalable manner. However, the effectiveness and enforceability of these agreements hinge on how they are implemented. To maximise their potential and ensure they hold up in court, here are some best practices for using wrap terms and conditions.

Clearly Display the Terms

Visibility is Key: For clickwrap agreements, ensure that terms are not only accessible but also prominently displayed before users complete a transaction. The agreement should ideally require users to scroll through the terms or at least acknowledge them through an affirmative action, such as ticking a checkbox.

Accessibility for Browsewrap: The terms should be clearly visible on the website. Links to the terms and conditions should be placed where they are easily noticeable, such as the footer of each webpage, and not hidden in obscure areas.

Simplify the Language

Use Plain Language: Legal jargon can be confusing and off-putting. Using clear, concise, and simple language helps users understand what they are agreeing to, which can enhance the enforceability of the terms. If you are engaging in business to consumer transactions, you are required under the Consumer Rights Act 2015 to use plain and intelligible language in your terms.

Highlight Key Terms: Important clauses such as cancellation policies, auto-renewal terms, limitations of liability, and data usage policies should be clearly highlighted or summarised before the user agrees to the full terms.

Ensure Affirmative Consent

Active Engagement: Particularly with clickwrap agreements, require users to actively engage with the terms. This can be through checking a box or clicking an “I Agree” button specifically designed to show active consent.

Avoid Pre-checked Boxes: Pre-ticked boxes do not demonstrate clear affirmative action from users. Make sure users check these boxes themselves to indicate their active agreement.

Regularly Update and Notify

Inform Users of Updates: Whenever terms are updated, notify users through clear communications, such as emails or prominent notifications on your website.

Require Re-acceptance: For substantial updates, consider requiring users to agree to the new terms actively, similarly to how they agreed to the original terms.

Document User Agreements

Record Consents: Keep a robust record of when and how consent was given. This includes the version of the terms agreed to and the exact manner of agreement (e.g., click, tick, acknowledgment). These records are crucial in case of disputes.

Wrap terms and conditions are indispensable tools for businesses in the digital age. However, their enforceability can be compromised if they are not properly drafted and presented. Get in touch if you would like to discuss reviewing or drafting your wrap terms and conditions.