At Foundry we draft and review terms of service, terms and conditions, and end user license agreements on a regular basis. Each time, we are faced with the question of the best way to display the terms of service and have end users agree to them? In our work we always review the placement of terms of service with our clients and almost always recommend a “check the box” option. We find that it is better then just posting the terms of service on the site and telling the end users to go look at them in some way or form.
The reason we recommend a “check the box” approach (also referred to as “Clickwrap”) is because courts are enforcing these versions of online agreements more often then terms of service agreements that are just posted on a site or service (also referred to as “Browsewrap” agreements). The reason for this is the act of ‘clicking’ the box shows affirmative assent to the agreement by the end users. There are several recent cases that have upheld this process and found the terms of service contract to be valid and enforceable against the end user.
Another option that works for some companies is for end users who have to login into a site or service, to not only check the box agreeing to the terms, but to also send the user, in their welcome email, a reminder of the terms of service and a hyperlink. This may seem like overkill but the goal is to make sure that end users have actual or constructive notice of the terms of service. Courts are yet not clear on what constructive notice means, but these extra steps work in your favor.
Best practice tip: Use a “check the box” (“Clickwrap) option for your terms of service before your end user can use or access the site or service. This generally, is most fluid when included with your site or service login protocol.