Level Up!: Do Users Need To Click "I Agree" to TOS Button To Give Consent?

(TLDR: No. Courts decide these cases simply by whether the person had reasonable notice of the Terms & Conditions. If you have a website/app and plan on collecting personal info or just have customers in general, the I highly suggest you read more about this topic. Disclaimer: IANYL.)

As a UX designer, I try to make things that are as simple and painless as possible for users to use. One pain (and protection) that almost every product/app needs is a Terms of Service (TOS) agreement, aka Terms of Use (TOU), aka Terms And Conditions (T&C), aka End User License Agreement (EULA).

The current "best practice" for showing TOS to users is by providing a clear link near the "continue to use app" button (which could be a register or purchase button). This is so that most users don't have to go through the extra step of clicking "I Agree" to something that they likely didn't read. Also, having the TOS pop-up interrupts users' flow (and can sometimes be quite scary-looking).

But, unfortunately, before today, I never really thought about the legal consequences of the different methods to show users the terms and conditions. I just used methods that I noticed many other great UX designers and companies using. So, I wasn't able to explain the legal-ness (to my satisfaction) to concerned client.

I took it upon myself to take the time to do some research around this area and organize it into this post, with sources and references cited.

In my research, I have found that the courts also know that most users don't read the TOS, and clicking "I agree" doesn't mean that the user has read it. What the courts look for is mainly that the user has had the easy opportunity to find and read the TOS, if they wanted to.

There are two main ways that users "agree" to TOS:

  • Click-wrap Agreement, aka "click-through agreement": This means that users must take some sort of action that signifies their consent to the TOS. This action could be a button that says "I Agree". Also, near the call to action, it is sufficient to say "By [continuing], you agree to our Terms of Service", with the TOS having a direct link.
  • Browse-wrap Agreement, aka "not a contract": Basically, saying users agree to TOS by browsing website/app, and the link to TOS is not extremely easy to find in regular use. A link at the bottom of the website could be considered hard to find, especially when there are many other links down there too.

My Summary (Just from my research (links below), though more can always be done.)

  • If your app collects or uses personal information, then use the click-through (clickwrap) agreement.
  • Remove any clauses about unilaterally editing contract at any time.
  • Add ability for company to modify terms, with prior notice. [More research needed for exact words to use]
  • Add ability for users to reject TOS, e.g. by terminating account. 

A few sources I read, in order of my recommended readings (Yes, there is a "Good" before "Great", just because of what this post was supposed to be about):
 - Great: How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked (Forbes)
 - Great: The Clicks That Bind: Ways Users "Agree" to Online Terms of Service (EFF)
 - Good: Terms Of Use And Privacy Policy Best Practices (UpCounsel)
 - Great: Website Terms and Conditions: Some Best Practices (JDSupra)
 - Miscellaneous, but good: Terms of Service; Didn't Read (TOSDR)
 - Good: Browse wrap (Wikipedia)
 - Okay: Clickwrap / Browsewrap Agreements: It’s the Notice, Stupid!

Further Reading:
 - Terms of Use and the Digital Millennium Copyright Act (DCMA)
 - Search "Clickwrap vs browsewrap"

Disclaimer: I am not your lawyer (IANYL). This post's only intention is to help point readers in the right direction to learn more about this topic.

~ Danial Goodwin ~

ps - Bonus info! The terms "click-wrap" and "browse-wrap" come from physical goods/software that was "shrink-wrapped". Manufacturers had license agreements that basically said users agree to TOS by removing the shrink-wrap. (Source: Wikipedia)


How To Be A Good Programmer

Being a good programmer isn't about memorizing how to do everything. It's about being able to quickly research whatever you need to do.

~ Danial Goodwin ~


Always Create an API When Programming

Every time you develop a computer program or app, you should basically be building an API.

Getting in the habit of this will vastly improve modularity of your code, which in turn makes maintenance and future additions greatly simplified.

And, imagine, if you ever want to reuse code from one project in another project, then with proper abstractions you will be able to just quickly import the file(s) and carry on without worry, theoretically. ;)

~ Danial Goodwin ~


Challenge to Self: Daily Creativity

Challenge to self: Be creative at least once per day and share with the world.

ps - My more creative side can be found at http://chaoticdan.blogspot.com/ ;)


Level Up - Puzzles: Four Random Cards, Turn All Face-Up, Blindfolded (Solution)

You have four cards placed in a 2x2 grid pattern. Each card is randomly placed either face up or face down. Your goal is to flip all the cards face-up. But, there are a few restrictions:

  • You are blindfolded and never know which cards are face up or face down. Nor do you know how many cards are flipped either way.
  • Your movements for flipping cards are limited. Each turn you can flip either one or two cards.
  • You will only be told when all cards are face up. You will get no other notification on how the cards are orientated.

What are the fewest amount of turns required to ensure all four cards are (eventually) flipped face up? And how?

Ascii art on how the layout may look. Each card represents a card:
1 2
3 4

Sidenote: When this brain teaser was first told to me last week, the person explained the possible limited card movements as, roughly, "you can either flip the diagonal cards, a column of cards, or a row of cards. Or, you can flip just a single card.". I'm pretty sure the way I explained it ("each turn, you can only flip one or two cards") is the same and much easier to understand, so I guess that lowers the puzzle difficulty a little bit for you, the reader.



Level Up - Puzzles: Connect a 4x4 Grid of Dots With 6 Contiguous Lines (Solution)

Before reading this post, you should read my last one which introduces the puzzles better.

A common brain teaser is to connect a 3 by 3 grid of dots with four straight lines without picking up the pencil. After solving a 3x3, try to solve a 4x4, 5x5, etc. I have a proof that all of them have a solution.
Click read more to see the solutions and explanations:


Learned Experience

Many things learned are useful in other aspects of life.

Recently, I have learned a lot about business taxes and now personal taxes are so much easier to tackle. And, reading the IRS publications aren't that bad anymore. Prior to doing all of the business taxes research, I thought the IRS website and publications were overly complicated. Now, I consider each pub to be light reading even though they are small font, three columns per page, and typically around 5-40 pages.

I feel good.

~ Danial Goodwin ~


Level Up - Puzzles: Connect a 4x4 Grid of Dots With 6 Contiguous Lines (5x5 w/8, 6x6 w/10)

(TLDR: After solving a 3x3, try to solve a 4x4, 5x5, etc. I have proof that all of them have a solution.)

A common brain teaser is to connect a 3 by 3 grid of dots with four straight lines without picking up the pencil. See image below:


Published Two New Apps: Flappy Gravity and Gravity Runner

Using Construct 2, I've created two new HTML5 apps which run natively in Windows 8 and Windows Phone. I'd like to encourage you to try the apps. The links go to the store where you can see screenshots of the apps.

Gravity Runner
Gravity has gone crazy. There's only one hope... But, beware, the more times you change gravity, the more your power goes down.
- You are in control of gravity!
- Infinite, randomized levels
- Touch-enabled

Available now:
- Windows 8
- Windows Phone

Flappy Gravity
Gravity gone wrong! Change gravity with every tap! Avoid the obstacles.


Level Up - Business: How To File the Annual Report (Florida)

When you run a business in Florida, you must submit an Annual Report every year between January 1st and May 1st. It will cost $138.75 to file. And, if not filed in time, then there is a $400 penalty fee and possibility that the company is "administratively dissolved". But, the good news is that the report is easy to fill out and submit, and it's all done online.

When you complete the form online, you'll be able to edit your business address and member(s) address(es). Then you don't need to file a separate form for changing the addresses with the state (an extra $25).

First thing is, you don't need to spend any extra money for a third-party to complete this state requirement for you. They may charge upwards of $35 to complete the form that is easily completed within five minutes.

To complete your Annual Report:
1. You will need, your business's document number, Federal Employer Identification (FEI/FEIN) or Employer Identification Number (EIN), an email address to keep on file, and about five minutes.
2. Go to https://services.sunbiz.org/Filings/AnnualReport/FilingStart
3. Start the form by imputing your document number, then read the directions on the page. It is all straight-forward.
4. Pay the filing fee and submit. Now, you are done.

Disclaimer: This is not legal advice. This post is mainly a pointer to help others who also need to Annual Report for Florida. I'm sure other states in the US also have a page similar to the one linked here.

~ Danial Goodwin ~


Level Up - Business: How To Change Your Filed Information With The State Government (Florida)

If the information you have filed with the state has changed, then you are supposed to let the state government know about it. This blog post will simply point you to the page where you can find all the information that you need to change your filed emails, addresses, FEI/FEIN/EIN, your business name, and more.

For the state of Florida, you will need to go to the Sunbiz site at http://www.sunbiz.org/address_change.html.

Now that I have this information written down in my blog, next time I need to make a business change I will remember to just look at this post to find the link easily, rather than searching through the different government business websites.

~ Danial Goodwin ~