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    How to create online agreements with users
    Posted: 2013-08-12 13:57:39

    Legal contracts aren't the first priority for start-ups and small online businesses. A lot of things seem to come first, but before a website starts to build it’s user base, it should at least think about how to create agreements with users.

    While online businesses have very diverse needs in terms of what needs to be in the contract, common stumbling blocks comes at two points: how do you get people to agree to terms of use, and how can the terms of use be changed in the future. These are hard questions, and they are made harder by the fact that there are some really bad practices out there that seem like an easy way out.

    One of the worst ‘easy way outs’ for a developer is the ‘browsewrap’ agreement. It is common practice to put up a small link to the terms of service of the website, and include a term ‘by using the website, you agree to all the terms included’. It’s common enough that many people seem to think it’s a legitimate practice, when in reality, companies routinely get in trouble for relying on browsewrap.

    If you want your users to agree to a terms of service, you have to actually get them to agree. The standard practice online of having people check a box to indicate that they agree to the sites terms of service is usually sufficient, so long as users cannot bypass this process. If you don’t have users register with the site, it can be difficult to enforce a user agreement. Consider if there is a clause in particular you really need your users to agree with, and try to find a prominent way of displaying your terms.

    The other trap companies find themselves in is when answering the question ‘how can we update our terms of service’. The easy way out here is to include the clause ‘Company X reserves the exclusive right to change any element of this contract at any time without providing notice to the user’. While it sounds like an excellent solution to the problem, it’s actually an excellent way to bring the entire terms of service into question.

    Updating terms of service can be difficult. There is no easy way to allow one side to change a contract without the consent of the other. The easiest way is to treat the changes as a new contract, and have the users agree to it next time they login, or make a purchase at the site. E-commerce sites often do this by having a ‘I agree to the terms and conditions (updated XX)’ at every checkout page. Other sites like Google email their users when a change occurs, and require them to renew their agreement when they return to the site. The specifics of how you can properly notify users of a change in your contract vary based on the technological realities of each site, but in general, contracts should be designed with the understanding that it can be difficult to change them in the long term.

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