We see them all the time – those dreaded long terms of use agreements you have to agree to before using an online product or service. Most websites offering any type of product or service already offer them – and if not, they should be.
However, who actually reads them? Better yet, are they even enforceable? Most people agree to the document without reading a word – clients could be signing away the rights to their firstborn child and not even know it. Can it really be considered agreeing when no one actually knows what they agreed to? When a client signs your agreement they are entering into a contract with you – unfortunately, courts often find that these ‘contracts’ are only enforceable against the business, not the customer.
Let’s look at a few ways to make your user agreement more readable and enforceable in a court of law. First and foremost – while it is tempting to script the agreement yourself, it is much safer and potentially cost effective to have a professional do it for you making sure all legal loopholes are covered.
How clients give consent
Terms of use agreements (ToU for short) are easily thrown out in court if business owners cannot prove that a user actually assented to the agreement. How can you make sure your terms of use agreement will be enforceable in front of a judge? These agreements need to be visible and consented to in a clear manner on your webpage. Do not hide your agreement in a link, making it appear as an afterthought. Make sure the entire agreement is in plain sight, and then have the user put in his or her initials at the end. In this digital age, these types of online signatures are the future of the business. When a client leaves his or her initials in a box, it makes the entire agreement become much more enforceable rather than just hitting a simple ‘agree’ button.
Keep it simple
Too many user agreements are full of what appears to be pointless language and irrelevant to the client’s life. Keep the verbiage simple and easy to follow which will ensure that more customers actually read at least part of the ToU, rather than skipping to the end. Lawyers can be hired to draft a concise user agreement, making sure all relevant facts are laid out in easy to follow English. If you do decide to write a ToU agreement yourself, make sure all fees, deadlines and ownership rights are clearly covered. There are some basic outlines available online, but again consulting with a lawyer before posting it will make sure you are covered.
Different levels of agreements
Depending on the product or service being offered, tailor your user agreement’s consent to the importance of contract to your company. In other words, if this user agreement has a potentially huge affect on your business, make it a more lengthy process to give consent. If you have a multi-page agreement, require an initial or full signature on each page. If the deal is simply shipping a one time product to a customer, with little or no long term risk – a more simple form of consent will do (like hitting an ‘I agree’ button).
Make it original
Copying ToU agreements from other websites – no matter how similar they are – is an absolutely no. All of your agreements need to be completely original and tailored to your specific clients. The potential downfalls of copying a generic user agreement could cost you a lot of money.
ToU agreements are indeed one of the most dull, like sucking reads on the internet – that fact is unavoidable. However, they are a necessary evil to protect the rights of your business. Keeping your agreement readable, concise and to the point makes it much more likely to be enforceable in court should that day ever arise.