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by Jonathan T. Howe, Esq. | June 01, 2016
quick notes
 What terms are we usually agreeing to? Most often, they concern privacy, refunds and indemnity, among other parameters.

 The safest bet is to opt for click-wrap agreements, first sending users to the terms and then requiring them to check the click-box.

 While most people probably won't read your terms all the way through, read them yourself or have your lawyer read them to make sure they truly are applicable to your event.
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When it comes to events today, attendees looking to opt in, whether in person or virtually, will let you know by filling out a comprehensive registration form online. Recently, a California judge had something to say about how users accept terms and conditions in such instances, and it bears reviewing here.


CLICK VS. BROWSE
When a host organization sends out registration materials by email and asks for people to respond, somewhere along the way potential attendees are faced with a check box that says, "I agree to the terms and conditions." This is called a "click-wrap" agreement. A different version of this agreement comes up online when, simply by using the site, you agree to its terms. This is called a "browse-wrap" agreement, where the terms are outlined at the bottom of the page, and generally the user is not asked to indicate whether he or she is aware of them and agrees.

So which one works best -- browse-wrap or click-wrap?


CASE STUDY
A recent court decision involving the purchase of flowers online struck down browse-wrap agreements on the basis that the so-called contract did not establish that the customer understood and agreed to terms and conditions governing same.

In this instance, the online purchaser argued that he was not bound to the flower company's terms because he did not have notice of them, nor had he consented to them. The case subsequently was thrown out of court in favor of the purchaser.

The California court also noted that click-wrap agreements could be enforceable. The key element is to require that the user see the terms and conditions first, and then be required to take an affirmative step to agree to them.


APPLYING COURT SENSE
The takeaway for meeting professionals is not to assume that simply including terms and conditions somewhere on a website makes them enforceable. Not only should users have easy access to the terms, but it is safest to require affirmative consent from users to ward off any claims that they were unaware of the terms or did not expressly agree to them.

In reality, most people don't read click-wrap or browse-wrap language, but you must give them an opportunity to peruse the language to see what they are agreeing to.

They say ignorance of the law is no excuse, but if we have failed to direct people to the terms and ask them to actively indicate agreement, ignorance might well be an excuse after all. Of course, always consult with your attorney to find out what is appropriate for your own particular situation.



Jonathan T. Howe, Esq., is a senior partner of the Chicago and Washington, D.C., law firm of Howe & Hutton Ltd., specializing in meetings and hospitality law. Email questions to him at meetings-conventions@mcmag.com.