A new appellate court decision found that merely providing a hyperlink to terms of use near a submit button is insufficient to create binding terms. Companies must provide additional notice or prompt users to take an affirmative action to agree. The document discusses how this applies to terms of use, mobile apps, promotions, and any time binding terms are needed. It provides examples of what agreement language and placement should look like, such as a checkbox to agree or a statement directly above the submit button showing agreement to terms.

1. Mini Law Lesson
How to Create Binding Terms/Rules
Brian Heidelberger
bheidelb@winston.com
Twitter @briheidelberger
Info @ www.winston.com/bheidelberger

2. IMPORTANT DISCLAIMER
• I am not your attorney.
• This is not legal advice.
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3. New Appellate Court Decision
• Retailer failed to provide notice even though “Terms of
Use” link near “Submit” button
 Providing a hyperlink to the Terms of Use alone is
insufficient
 No matter how conspicuously the hyperlink is
placed
 Companies must also provide other form of notice
or prompt users to take an affirmative action to
agree.
• Unless you can prove actual knowledge of terms
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4. Applies to …
• Terms of Use /Sale
 Internet Websites
 Mobile Sites
 Apps
• Promotions
 Sweepstakes, Contests, Free Offers,
Rewards Programs, etc.
• Any Time You Need to Bind Someone
• NOT: Material terms disclosure requirements
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5. Submit Button With Terms
Below Fold
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6. Submit Button With Terms
Below Fold
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7. Rules/Terms Link
Which Doesn’t Reference
Assent
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8. What It Should Look Like
• ACCOUNT CREATION
 By checking the box, you are agreeing to our Terms; or
 By clicking the “Create Account” button below, you are
agreeing to our Terms
• CHECKOUT
 By checking the box, you are agreeing to our Terms; or
 By clicking the “complete order” button below, you are
agreeing to our Terms
• IMPORTANT NOTE
 Advise to include a link to the Privacy Policy as well
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9. Check Box to Agree to
Terms/Rules
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10. Statement Showing Agreement to
Terms Directly Above Submit Button
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11. Statement Below Fold
Showing Assent
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12. Follow me on Twitter
@BriHeidelberger
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13. More Mini Law Lessons
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