Are you wondering how to write a user agreement? Be sure to include all the important points based on the transactions you do through your website or mobile application. Organize the agreement into different sections to make it easy for your users.

What Is a User Agreement?

A user agreement is an agreement made between the owner, administrator or provider of a web or mobile application based service and the user of such a service, that defines the rights and responsibilities of both the parties. Privacy policies, website terms and conditions, etc. are all examples of a user agreement.

Sometimes, you may be legally required to have a user agreement. For example, if you collect personal information from the user through your mobile app or website, you must let your users know about it through a legal statement, typically known as privacy policy.

It's a good idea to divide a user agreement into different sections. Sometimes, you may want to have multiple different agreements, rather than a single lengthy agreement. For example, a user looking for specific information pertaining to returns and refunds should be able to find it easily in a separate section or agreement, without having to dig through lengthy terms and conditions relating to various other topics. You can either have a separate section for returns and refunds under the main agreement or have an altogether separate agreement for returns and refunds policies.

Types of User Agreements

There are basically two types of user agreements:

  • Browserwrap
  • Clickwrap

Browserwrap Agreements

These agreements are basically a notice informing the users about terms and conditions they are subject to. For example, a website may state something like “by continuing to use this website you agree to the terms of use of this website.” Sometimes, a hyperlink may be provided to take the user to the terms of use. Browserwrap agreements do not require the users to actually read or accept the terms of use as a precondition to using the services they pertain to. Courts are often hostile toward such agreements.

Clickwrap Agreements

Clickwrap agreements require the users to take certain affirmative action as an acknowledgement of their consent. Typically, such agreements require you to click a check box accepting the terms of use. Some agreements may even require you to scroll through the entire agreement before you can click the check box.

Legally, clickwrap agreements are far stronger than browserwrap agreements. However, some businesses may still favor browserwrap agreements, since these agreements are comparatively less likely to make the customers leave the website.

If you decide to place a browserwrap agreement, you should take the following steps to increase the chances of enforceability of such an agreement:

  • Prominently display the agreement link, preferably at the top of the webpage.
  • Make the wordings and hyperlink stand out from the rest of the content.
  • Prominently display the notice that the user is legally bound by the agreement.

Consent Banners

The consent banner method follows a middle path between clickwrap and browsewrap agreements. It allows the users to use your services, but does not assume their consent. Consent banners continue to appear at the top, bottom, or side of the users' screen asking them to click the checkbox or click the button in order to consent to the terms of use.

Do You Need a User Agreement?

You must have a user agreement in the following cases:

  • If you sell goods or provide a service through your website or application
  • If you collect data from users of your website or application
  • If you allow users to post content on your forum
  • If you allow users to buy and sell goods or services on your platform
  • If you engage in online commerce in any other manner

You need not have a user agreement if your website only provides information, but does not transact any business or gather any data. However, it's better to have some statement setting out the conditions of use of your website.

Steps to Take When Sued by a User

If you have a user agreement and still a user sues you, take the following steps:

  • Find out the date of acceptance by the user.
  • Prove that the user accepted the terms of use.
  • If you have multiple versions, find out which version the user accepted.
  • Find out the date of modification to the user agreement.
  • Find out whether the user accepted any modifications.

Base your response on the above findings. You can make use of web archives like the Wayback Machine if required.

If you need help with how to write a user agreement, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.