User Agreement

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User Agreement

A Brief Introduction of User Agreement

A user agreement is an agreement that is available on websites or on mobile applications. In this agreement, the user/s of such a website or mobile application are made aware of the terms and conditions they are agreeing to by using the website. They consist of “dos” and “don’ts” for the users. Such a contract may also be known as an end-user agreement. The privacy policies of a website or the terms and conditions available on a website are all examples of user agreements.

Who Takes the User Agreement?

This agreement is entered into between the owner or administrator of the website or the mobile application and the user/s of such a website or mobile application.

Purpose of the User Agreement

The purpose of this agreement is to define the relationship that the user has with the website. It lays down a set of rules that dictate what the users may and may not do on the site. It also ensures that the user is aware of whether the website is collecting any data of the user, and if it is, what purpose such data will be used for. Such agreements are needed in situations where the website collects data from the users, where users post any content on the site or mobile application, where buying and selling of goods takes place on the website etc.

There are usually two types of user agreements – (i) browse wrap and (ii) clickwrap.

A browse wrap agreement is like a notice that informs the users about the terms and conditions that they are subject to. These agreements don’t require the user actually to read the terms of use or to accept them before continuing to use the website. There may be a hyperlink provided that takes the user to the  privacy policy or the terms of use.

On the other hand, a clickwrap agreement requires the user to click a box and accept the terms of use before proceeding to the site. Sometimes, the user may also have to scroll through the entire terms of use before clicking on the “I accept the terms of use” box.

Clickwrap agreements are considered to be legally stronger than browsewrap agreements since there is an affirmative action taken by the user.

Contents of the User Agreement

The contents of the agreement will depend on the types of services provided by the website. The agreement will first define the services that are provided and the obligations on the part of the user. The obligations include the user being of a certain minimum age, the user providing the true and correct information about himself, the user agrees not to share his account with any other person, agreeing to abide by the terms of use and the like.

  • If the website offers any paid services, the agreement should mention how such payment will be governed and if the website will store the payment information of the user.
  • The contract will further mention that the website owns the intellectual property rights in all the services that it offers and in the logos and names of the site.
  • The agreement may also have a clause stating that the site will show ads based on the user’s preferences and that the user agrees to the same.

An important clause in this agreement is the liability clause. It will state that the site will not be responsible for the user’s loss of data or any damages that may be suffered by the user as a result of the services that are offered by the site.

How to Draft the User Agreement?

The following are some of the steps to follow while drafting the agreement:

  • Nature of the rights granted to the user for use of the application or property.
  • Limitation on the use of the application or limitation on the assignment of such rights to use
  • Permissions on the ability to modify, copy, distribute, disclose, retransmit, sell, publish, broadcast, or circulate the Service.
  • Liability of the provider to inform any changes in the terms of service
  • Details of the ownership and copyright including the permissions for assignment of IP.
  • Limitation of liability for the provider for any damage or injury caused to the user as a result of the application whether direct or indirect
  • Any warranties that the provider purports to make and the indemnification clauses required by the user along with the overriding laws and the superseding powers of the agreement over any other subsequent agreement.
  • Use of user-specific information for providing third-party services like advertisements on the application.
  • Termination of contract and subscription to premium services.
  • Billing practices and interacting with the community

Negotiation Strategy

These agreements do not have any scope for negotiation between the parties. It is a contract made by the website, and the user must accept it if he wishes to use the site. Hence there is no negotiation with regard to the terms of the agreement.

Benefits and Drawbacks of the User Agreement

The following are the benefits and drawbacks:

  • These agreements help the website in maintaining a set of rules that all the users have to comply with. This makes it easier for the site to identify and stop any conduct that goes against the policies of the site.
  • It also gives the website the right to remove any user or account that does comply with the terms of use.
  • Such an agreement also makes the user aware of the privacy policy of the website that they are using.
  • The user can verify whether the website is collecting any data from the user.

What Happens in Case of Violation?

There are multiple remedies available to a website in case any user violates the terms of the user agreement. In case any content is shared on the site which is abusive, defamatory, fraudulent or goes against the policy of the site in any way, such content can be taken down by the site. In case a user repeatedly violates the terms of use of the website or any policy, the site has the option of either suspending the account of such user or taking down the account.

If a user has any cause of action against the site or if there is any dispute that may arise with regard to the terms of the agreement, such dispute will be taken up before a competent court in a country that has jurisdiction over the matter.

User agreements have become the norm in today’s times as people use multiple websites and mobile applications for various purposes and to complete a variety of tasks. Websites, especially social media sites, may be used by a number of people to spread content that may be untrue or that may be provocative in nature. This agreement can help the site to remove such content and block such a user.  Additionally, protection of personal data is extremely important(1), and hence websites create a privacy policy that makes sure the data of every user is adequately protected.