Browsewrap is everywhere
A Practical Alternative?
Understand that even the “click-wrap” format is not a guaranteed way to form a binding contract. Click-wraps have been successfully challenged as well. Take additional actions to make it clear that users had an opportunity to see and review the terms. Ideally, the site features should require a user to scroll through the entire agreement before the “I Accept” button can even be clicked. That makes it all the more difficult for your users to argue that they did not realize what they were clicking. Never limit the time that a user has to read the terms being accepted. Make the terms as easy to understand as possible. As an additional best practice, try to emphasize the most important terms in your online contracts in order to make them highly visible. For instance, placing LIMITATION OF LIABILITY provisions in an “all caps” format and perhaps with bold and underlined fonts makes it all the more difficult for users to claims that they never saw the terms. Let your UI/UX people use their creativity on making those key terms as obvious as possible. Let them know that the goal is to make the terms more obvious and more understandable–not to bury them. Still, expect challenges to enforceability.
Is a Standard Agreement All That Impractical?
Finally, consider whether you ought to have good, old-fashioned written and signed agreements for at least some users or some functions of your business. Written and signed contracts will not be scrutinized in the manner that browsewrap and click-wrap agreements are scrutinized. I find that many website owners actually want to enter into truly binding terms with only a small subset of users that are actually buying products or services. With this subset (at least where the dollar amounts or terms are particularly important) a written signed contract may make sense. Acceptable e-signature formats make exchanging electronic contracts and signatures very efficient.
I see many companies that want to use a click-wrap format because they really want to create a sense of high volume demand for their products or services in situations where they could easily obtain written contracts during the early stages of their business. They want to create the perception that they are a much bigger company that could not possibly enter into thousands of written contracts. That is a business decision but it should be made with the knowledge that click-wrap agreements, and even more so browsewrap agreements, may not be enforceable when push comes to shove. Strongly consider a measured approach in your efforts to balance usability with enforceability.