By Bill Yanger
I've heard the bar-stool lawyers (not attorneys, they just like to play one while slurping drinks in front of pretty females) from time to time pontificate about lawsuits they'll defend pro se over on-line contracts they claim have no teeth because, "I never signed nuthin!" Not so fast...
Place the "I agree" button at the point of sale
Just having an "I agree" button is not necessarily enough. At least one court, Specht v. Netscape, 306 F.3d 17 (2d Cir. N.Y. 2002), has warned that "submerging" the contract terms so that they could not be seen by the consumer unless he or she scrolled down the web page beyond the initial pertinent material was not sufficient to place consumers on actual or constructive notice of those terms. Seems like common sense, right? Sure. Place the button at the point of sale.
Terms and Conditions front and center
The terms and conditions of the transaction must be front and center. The buyer should be able to readily find them and read them before being asked to agree to a purchase. Burying the legal mumbo jumbo three clicks away in some dark dank corner of your website even you never visit is just asking for trouble.
Make them scroll
Make the buyer go through the exercise of scrolling through the fine print to get to the "I agree" button. Of course, our assumption is that they're reading it but that is less important than the legal presumption that they did so.
Let them print it
Give your customer the option to print the contract and review it. Whether they do so or not is their issue but simply offering the option will go a long way to convincing a Judge they had a fair opportunity to do so.
No clicky, no ticky
Finally, no clicky, no ticky. Do not allow the sale to transact unless and until the buyer has acknowledged the plain language terms that substantiate they know exactly what they are doing and want to do it anyway.