No individual acceptance records
AWS logs with timestamped user creation simply aren’t enough.
Courts need timestamps & back-end metadata tied to a specific, immutable version history for every single user’s acceptance.
Hiding Critical Clauses
This gave rise to the winning “needle in a haystack argument.”
After all, your jury is full of users who don’t read terms, especially more than the first page.
Burying Arbitration Provisions & Class Action waivers deep in the ToS body has been seen as deceptive and unenforceable by courts, paving the way for expensive class action.
Ambiguous Language
“By checking this box, I agree to these terms & conditions”
Cool UI is not for legal matters - straightforward & clear is the name of the game here.
No Version History
Contracts require Offer, Acceptance, & Consideration.
Without proving exactly which contract version was offered to a user, courts cannot uphold acceptance. They simply don’t know what was accepted and will render the entire contract void.
Disparate or non-existent back-end metadata
In some cases, teams have a good amount of acceptance metadata.
The problem?
They have to weave together years of acceptance activities across multiple teams, numerous databases, and tens of thousands of users. These heroic efforts often don’t work, and costs hundreds of hours of internal time regardless of the outcome.
Hidden Acceptance Language
Placing acceptance language beneath the call to action is often seen as deceptive, giving plaintiffs the argument that they were never notified of the terms (critical for their to be a contract).
Putting acceptance above the CTA is an easy solve here.
Immutability question marks
If you cannot prove that a historical version is actually historical (& unchanged since you pushed the next version) a court will be unlikely to bind a user to that contract. After all, a defendant would be incentivize to go back and change it.
Weak Acceptance Method
Any method that does not involve a single-purpose action to accept the agreement is weak.
Specifically, the sole purpose of a user action should be to accept the agreement.
No reacceptance for updates
“You agree to any and all future updates” simply doesn’t hold true when those updates are highly impactful.
Changing jurisdiction or payment terms?
Adding arbitration provisions?
You must have each user actively reaccept the new contract.
