Whether a term of use is likely to be enforced as a contract by a court depends on whether the company can prove that the user consented to the documents (e.g., whether a contract was entered into). Whether a company can demonstrate that a contract has been entered into turns primarily on the design of the mobile application.
Definitions: Browsewrap and Clickwrap
“Clickwrap agreements are generally defined by the requirement that users ‘click’ some form of ‘I agree’ after being presented with a list of terms and conditions.” Plazza v. Airbnb Inc., 2018 WL 583122, *6 (S.D.N.Y. Jan. 26, 2018).
“[B]rowsewrap agreements are not presumptively unenforceable.” Plazza, 2018 WL 583122 at *6.
Design: What Will Courts Enforce?
Finally, it is prudent to obtain consent to updates to your terms of service. See e.g. Pincaro v. Glassdoor, Inc., 2017 WL 4046317, fn. 11 (S.D.N.Y. Sept. 12, 2017).
- Use a font that is legible on all relevant platform devices (i.e., font sizes must not be so small on a mobile device as to be illegible).
- Require the click before the user can use the application.
- Track every click back to a verifiable account, so that if you ever need proof that a specific consumer consented, you have it.
- Think very carefully before relying on a browsewrap.There is no question that clickwrap is more cumbersome to the consumer and more burdensome to the company. There are ways to alleviate these concerns, by working with counsel to draft the appropriate approval process for the application to minimize risk and maximize consumer satisfaction.