The Components of an Enforceable Clickwrap Agreement
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Paul R. Bedard, Esquire
Health clubs began the switch from paper to digital agreements and waivers many years ago. Whether a member or guest signs a document via pen, stylus or keyboard, the same legal principles apply. Therefore, a court will apply traditional principles of contract law when determining enforceability. Yet, the legality of digital agreements also involves some nuances that require attention.
Health clubs that operate within the digital realm typically utilize clickwrap agreements for memberships, personal training agreements, liability waivers and other agreements. Unlike browse-wrap agreements that passively instruct online browsers and users that they are consenting to all of the terms and conditions set forward by the offeror, clickwrap agreements are superior because clickwrap agreements require the user to affirmatively agree to the terms presented by signing, initialing or "clicking" to demonstrate that consent is present. Since obtaining affirmative consent from the user is critical within any agreement, clickwrap agreements are beneficial by design.
However, the clickwrap agreement should be designed to require separate and distinct affirmative consent from the user for each unique material aspect of the agreement. For instance, a digital membership agreement should not allow a prospective member to subsequently proceed through separate material aspects or obligations of the agreement without actively and separately requiring affirmative consent to the terms of service, assumption of risk, agreement to arbitrate, etc.
Any consent being requested that is ancillary to the primary or material terms of the agreement should be readily distinguishable with its own field for approval. For example, when requesting permission to utilize a member's email address for marketing purposes, the request to use the information in this manner should require a specific and distinct affirmation rather than being buried within the agreement's boilerplate language or fine print.
The material terms of service --or key components of the membership-- should be displayed prominently within the agreement. Providing bold font and reasonable notice --even when a user fails to read the fundamental terms-- will likely equate to a court finding that the user had constructive notice when it can be shown that a reasonable person would have read the bold and prominent terms presented. Furthermore, varying laws also dictate font requirements, etc., which equates to a minimal threshold as it relates to how prominently the material terms must be presented.
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