“In many cases the parties seeking to rely on the terms of the contract know or ought to have known that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party…”
Anyone who wants to read a little further can look up Tilden Rent-A-Car Co. v. Clendenning, (1978), 83 D.L.R. (3d) 400.
What if we take the principle applied to Mr. Clendenning and apply it to click-wrap agreements (the ones where you have to click “I Agree”)? While the circumstance is different from the rental car industry, the practical reality of users’ actions may not be all that different, and it is possible that the operators of the sites/apps/services ought to know that.
Some of the techniques which can be helpful (not necessarily applicable to all circumstances and certainly not a comprehensive list):
- Use Simple English rather than legal lingo whenever possible;
- Try and make the Terms as short as possible;
- In some circumstances outline the General Terms in a summary;
- Draw particular attention to any unusual or particularly onerous or stringent terms;
- Offer easy modes of communication for any questions a prospective user may have.