Leadership Letter
March 2024
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.
How can we make ‘clickthrough’ agreements stand up legally?
If you are accepting online registrations for your section events or activities, you’ve probably at least considered adding a “clickthrough” agreement where registrants must accept terms and conditions of the activity – terms ranging from cancellation fees, codes of conduct, and even waivers of liability. But are those agreements really even enforceable?

The answer is “it depends.” In theory, contracts that are “signed” by a click are every bit as valid as a signed agreement – but in practice, clickthrough agreements are far more susceptible to challenges. Evidentiary questions can be raised about whether the registrant was given adequate notice of the terms, what language on a changing website was in place at the time of the registration, or even whether the registrant was even the person who clicked the agreement!

The following are a few tips to help put you in the best possible position in the event you need to enforce a clickthrough agreement:

  1. The user must have to actively click on the agreement to register. Terms on a page without a click through option, or where the “I accept” option is pre-selected, leave open the argument that the registrant never saw or agreed to the terms.
  2. Make sure the terms are visible and clear to the average reader. This is true for any agreement, but it’s especially important where someone might scroll through fine print and not see a controversial term.
  3. Maintain records. If you make changes to your registration page, make sure you keep records of each version in case questions ever arise about the that was in place for a prior registrant.