Online Terms Enforceability Checklist: Assent Flow, Notice Design, Modification, Arbitration, and Evidence of Acceptance

By Casey Scott McKay · 2025-01-22

This checklist establishes whether a company's online terms can actually be enforced, and then builds the capability where they cannot. It opens with the five-user proof test that measures what the company can produce today, then inventories every flow that creates a relationship - not just registration - and runs each against the design requirements courts apply. It specifies the three records that decide a motion to compel, the modification process that keeps a legacy cohort from silently invalidating a clause, and the re-acceptance campaign that converts an unknown population into a documented one. It covers arbitration architecture, mass-arbitration exposure modeling, and the negative-option rules that police the same screens. Gates mark items that should clear before any new flow ships.

IP and Technology > Internet | Checklist | Published 22 January 2025 - Updated 27 April 2025 | Casey Scott McKay - marksy.us

Summary. This checklist establishes whether a company's online terms can actually be enforced, and then builds the capability where they cannot. It opens with the five-user proof test that measures what the company can produce today, then inventories every flow that creates a relationship — not just registration — and runs each against the design requirements courts apply. It specifies the three records that decide a motion to compel, the modification process that keeps a legacy cohort from silently invalidating a clause, and the re-acceptance campaign that converts an unknown population into a documented one. It covers arbitration architecture, mass-arbitration exposure modeling, and the negative-option rules that police the same screens. Gates mark items that should clear before any new flow ships.

Keywords: assent flow inventory · notice placement · hyperlink styling · font conspicuousness · mobile viewport testing · acceptance event log · rendering archive · version archive · cohort audit · re-acceptance campaign · modification notice · arbitration clause · delegation provision · class waiver · opt-out design · mass arbitration modeling · negative option compliance · declarant readiness · enterprise incorporation by reference · annual review

How to use this checklist

| Phase | What it covers | |---|---| | 1 | The five-user proof test | | 2 | Inventory every assent flow | | 3 | Notice placement and typography | | 4 | Link styling and assent language | | 5 | Device and viewport testing | | 6 | The rendering archive | | 7 | The version archive | | 8 | The acceptance event log | | 9 | The lookup endpoint | | 10 | The cohort audit | | 11 | The modification process | | 12 | The re-acceptance campaign | | 13 | Arbitration architecture | | 14 | Opt-out design | | 15 | Mass arbitration modeling | | 16 | Negative option and cancellation | | 17 | The content license | | 18 | Enterprise and API flows | | 19 | Declarant readiness | | 20 | Litigation day one | | 21 | Special populations | | 22 | Ownership and annual review |

Boxes marked [Gate] should clear before any flow that creates a relationship ships.

The matter. A subscription service with eight years of history discovered, three weeks into a putative class action, that forty-one percent of its active accounts were bound to a version predating its arbitration clause, and that no acceptance events had been logged before 2023.

Phase 1. The five-user proof test

[ ] [Gate] Pick five real user identifiers at different registration dates.
[ ] For each, request three artifacts: the terms version in force, proof of acceptance, and an image of the screen that user saw.
- Why. A motion to compel is decided on a declaration. A declarant who can only describe practice is offering inference where the court wants record.
[ ] Give it a week and record what came back and how long it took.
[ ] Write down the gaps and date the memo. This document unlocks the engineering budget.
- Typical findings. The archive begins at the last website migration; acceptance events begin at a product rewrite; no rendered captures exist at all.
[ ] Compute the headline metric: the percentage of active users whose acceptance can be proven today.

Phase 2. Inventory every assent flow

[ ] [Gate] List every interaction that creates or changes a relationship, not just registration.
- Account creation, guest checkout, invited-user onboarding, in-app upgrade and plan change, API key issuance and rotation, embedded or partner-hosted signup, mobile app first-run, and any re-acceptance interstitial.
[ ] Record, for each: the surface, the control, the notice text, the link targets, and the version identifier.
[ ] Identify flows with no notice at all. There are usually two or three.
[ ] Identify flows operated by third parties — resellers, partners, affiliate landing pages — where the company's terms are supposed to attach.
[ ] Flag flows in languages other than English, where the terms must be conspicuous in that language.

Phase 3. Notice placement and typography

[ ] [Gate] Notice text sits immediately above or beside the action control, in the same visual field, requiring no scrolling at any supported viewport.
- Why. Specht v. Netscape is the failure case — a reference below the fold formed nothing. Meyer v. Uber Technologies is the success case, and the opinion turns on the uncluttered screen.
[ ] Notice text is at least the size of surrounding body copy, at standard contrast.
- Trap. Light gray small type is the single most common fact in a formation loss.
[ ] No interstitial content between the notice and the control.
[ ] No competing calls to action in the same field.
- Why. Sgouros v. TransUnion refused enforcement where surrounding content misled the user about what the button did.
[ ] No pre-checked boxes.

Phase 4. Link styling and assent language

[ ] [Gate] Links to the Terms and Privacy Notice are colored and underlined, readily apparent as hyperlinks.
- Why. This is the specific holding of Berman v. Freedom Financial Network: unstyled clickable text is not apparent as a link.
- Trap. A brand style guide that forbids underlines. This is the item that generates the most internal resistance and the cheapest fix.
[ ] The assent sentence is explicit and names the documents.
- Works: "By clicking Continue, you agree to the Terms of Service and acknowledge the Privacy Notice."
- Fails: "See our Terms," beside a Continue button.
[ ] Arbitration and the class waiver are named on the assent screen for consumer flows.
- Why. Costs nothing and answers most of the procedural unconscionability argument.
[ ] Every link resolves to the current, correct document, tested automatically.
[ ] Notice text reads like a sentence a person would say, not like a legend.

Phase 5. Device and viewport testing

[ ] [Gate] Define the supported viewport matrix, including the smallest device with meaningful traffic.
[ ] Verify placement and legibility at every viewport in the matrix.
- Why. Courts evaluate what the user saw on the device used. A layout that pushes the notice off a phone screen forms no contract with phone users, who are usually the majority.
[ ] Test with the operating system's largest accessibility text size.
[ ] Verify screen reader announcement order places the notice with the control.
[ ] Add a regression test so a future design change cannot silently break placement.

Phase 6. The rendering archive

[ ] [Gate] Store a rendered capture of each assent flow version, at each viewport class, keyed to version identifiers.
- Why. Not the template — the result. The template does not show what the user saw.
[ ] Capture on every flow change, automatically, as part of the deploy.
[ ] Retain for the longest applicable limitations period plus three years.
[ ] Test retrieval by flow version and viewport class.

Phase 7. The version archive

[ ] [Gate] Retain every terms and privacy version immutably, with effective-date ranges.
[ ] Backfill from public web archives where internal history is missing, and note which entries are reconstructed.
- Trap. Assuming the gap is harmless. The other side will retrieve the archived version you cannot find.
[ ] Maintain a public change log listing each version, its effective date, and a plain-language summary.
[ ] Keep redlines between consecutive versions.

Phase 8. The acceptance event log

[ ] [Gate] On each acceptance, write: user identifier, terms version identifier, privacy version identifier, ISO-8601 timestamp with timezone, surface, flow version, viewport class, and locale.
[ ] Write the event synchronously with the action, not from a nightly job.
[ ] Make entries immutable and auditable, with a record of who can modify them.
- Why. The declarant will be asked exactly this on cross.
[ ] Handle edge cases explicitly: multiple devices, cleared cookies, account transfers, and accounts created by an administrator for someone else.
[ ] Log re-acceptance events with the same fields.

Phase 9. The lookup endpoint

[ ] [Gate] Build one internal lookup taking a user identifier and a date and returning: the version in force, the acceptance event, and the rendered screen.
[ ] Acceptance criterion: a named person produces all three in under ten minutes.
[ ] Test it quarterly on ten random users and record the success rate.
[ ] Give access to the people who will need it — legal operations and the likely declarant — not only to engineers.

Phase 10. The cohort audit

[ ] [Gate] Diff every version for material changes.
- Arbitration added or amended, class waiver, limitation period, liability cap, governing law and forum, content license scope, data use, automatic renewal.
[ ] Bucket the user base by registration date against those boundaries.
[ ] For each bucket, record what notice of each later change was actually given — email, interstitial, banner, or nothing.
[ ] Write the enforceable version per bucket.
- Why. Under Douglas v. U.S. District Court, a party is not bound by amendments it had no notice of, and posting a revision to a website does not supply that notice.
[ ] Compute the second headline metric: the percentage bound to a version predating the current arbitration clause.
[ ] Check whether the modification right was unrestricted and retroactive.
- Why. Harris v. Blockbuster treats that as rendering the arbitration promise illusory.

Phase 11. The modification process

[ ] [Gate] Eliminate "effective upon posting." Effective dates are always in the future, at least thirty days out.
[ ] Send advance email notice to the registered address, with a subject line naming the change rather than the document.
[ ] Summarize each material change in plain language, above the fold, in three to six bullets.
[ ] State what the user can do — opt out of arbitration, close the account, or continue — each with a working link.
[ ] Record message identifier, template version, recipient, send timestamp, and delivery result.
[ ] Require a re-acceptance interstitial for changes to dispute resolution, liability limits, content licensing, or data use, with its own logged event.
[ ] Carve dispute resolution out of the general modification right, or provide that amendments do not apply to accrued claims.
[ ] Never bundle a dispute-resolution change into a housekeeping update.

Phase 12. The re-acceptance campaign

[ ] Target the legacy cohort identified in Phase 10.
[ ] Use an interstitial on next login, with a plain-language summary and a logged acceptance event.
[ ] Run it long enough to reach dormant users, and set a cutoff.
[ ] Flag non-responders in the system as bound to the earlier version.
- Why. An identified exposure can be reserved for. An unidentified one cannot.
[ ] Report the conversion rate and the residual population.

Phase 13. Arbitration architecture

[ ] [Gate] Remember that formation comes first. The Federal Arbitration Act does not save a clause in a contract that never formed, and formation is for the court regardless of delegation.
[ ] Include a clear and unmistakable delegation provision.
- Rent-A-Center v. Jackson requires a challenge aimed specifically at it; Henry Schein v. Archer & White forecloses a wholly-groundless exception.
[ ] Include a class and collective waiver.
- Enforceable under AT&T Mobility v. Concepcion, American Express v. Italian Colors, and Epic Systems v. Lewis.
[ ] Company pays filing and arbitrator fees for consumer claims.
[ ] Venue does not shift cost — the consumer's county, or telephonic and documents-only for smaller claims.
[ ] Draft carve-outs narrowly. Small claims, and injunctive relief tied to intellectual property and confidentiality.
[ ] Omit the recurring losers: truncated limitations periods where unenforceable, waivers of statutory damages or fees under remedial statutes, and one-way obligations without a defensible interest.
[ ] Include severability, understanding courts will sever a term but not rewrite a permeated provision.

Phase 14. Opt-out design

[ ] Provide a genuine opt-out from arbitration — thirty days, by email, no account closure required.
[ ] Disclose it on the assent screen, not only in the document.
[ ] Make the process actually work, and log opt-outs against user identifiers.
[ ] Track take-up. It is almost always negligible, and it is the strongest available answer to procedural unconscionability.

Phase 15. Mass arbitration modeling

[ ] Estimate realistic claimant volume for the company's exposure profile.
[ ] Multiply by the provider's per-case administrative and arbitrator fees, payable before any merits determination.
[ ] Compare against aggregate claim value. That ratio determines how much architecture is warranted.
[ ] Consider, and price the unconscionability risk of: pre-filing informal resolution windows, batching into tranches, bellwether processes, individual verification requirements, and provider selection with mass-filing protocols.
[ ] Do not over-engineer. A provision built too aggressively to frustrate claiming can be struck entirely, leaving the company in court with no waiver at all.

Phase 16. Negative option and cancellation

[ ] [Gate] Disclose price, renewal cadence, and cancellation method in the same visual field as the billing control.
- Why. 15 U.S.C. § 8403 requires clear and conspicuous disclosure before obtaining billing information, express informed consent, and simple cancellation. State automatic-renewal statutes add their own requirements, several with private rights of action.
[ ] Make cancellation no harder than signup. Same number of steps, same channel availability.
[ ] Remove retention interstitials that do not lead to cancellation.
[ ] Remove pre-checked upgrades and post-payment disclosures.
[ ] Note the convenient alignment. Every fix here also improves formation, under 15 U.S.C. § 45 and the case law alike.

Phase 17. The content license

[ ] Confirm the terms grant a license covering reproduction, display, distribution, performance, and derivative works to the extent needed to operate the service.
- Why. Without it, storage, display, thumbnails, and transcoding infringe 17 U.S.C. § 106 at scale.
[ ] Confirm sublicensability to hosting providers and content delivery networks, which are separate legal entities.
[ ] Scope it to operating the service. If training models on user content is intended, say so specifically rather than relying on "improve the service."
[ ] Provide realistic survival after deletion for backups and shared views, with a stated wind-down.
[ ] Address likeness separately where recognizable people appear, since a copyright license says nothing about the subject's publicity rights.

Phase 18. Enterprise and API flows

[ ] Capture signer name, title, entity, and an authority representation in click-through master agreements.
[ ] Pin the version in any order form incorporating online terms by reference — name the document and its version or effective date.
[ ] State an order of precedence: order form, negotiated addendum, online terms, policies.
[ ] Make the order form operative and attach terms as an exhibit rather than linking them, to avoid a battle-of-the-forms problem.
[ ] Re-present API terms on each key rotation.
- Why. For enforcing access restrictions against automated users, the record of actual notice does the work — the Register.com v. Verio posture, which carries more weight than the access theory after Van Buren v. United States and hiQ Labs v. LinkedIn.
[ ] Draft business auto-renewal notice windows explicitly rather than relying on evergreen language.

Phase 19. Declarant readiness

[ ] [Gate] Name the declarant, someone with personal knowledge of the systems.
[ ] Confirm they can say "the acceptance log shows" rather than "our standard practice was."
[ ] Run the cross-examination rehearsal: how do you know the log is accurate, who can edit it, what about multiple devices, cleared cookies, or accounts created by an administrator.
[ ] Fix any answer that is a guess, at the system level.
[ ] Refresh the name annually. Declarants leave.

Phase 20. Litigation day one

[ ] Issue the litigation hold covering terms versions, rendered captures, acceptance logs, modification notices, and support tickets.
[ ] Retrieve the three artifacts for the named plaintiff before drafting anything.
[ ] Pull the public web archive captures yourself, and reconcile them against your exhibits before the other side does.
[ ] Move to compel before any merits motion.
- Why. Morgan v. Sundance removed the prejudice requirement from waiver, so litigating first is a live risk.
[ ] Petition under 9 U.S.C. § 4 with a stay request, and reserve all other defenses expressly.
[ ] If denied, note the appeal under 9 U.S.C. § 16 and rely on Coinbase v. Bielski for the mandatory stay.

Phase 21. Special populations

[ ] Minors. A contract with a minor is voidable in most states, undercutting arbitration and liability limits for that population. See the Children's Privacy Compliance Checklist.
[ ] Acquired user bases. Run Phases 1, 2, and 10 during diligence rather than after closing. Migrating acquired users requires notice and a logged acceptance event.
[ ] Non-English flows. Terms available and conspicuous in the flow's language.
[ ] Employees and internal tools. Route separately; consumer doctrine does not answer whether an arbitration clause reaches statutory employment claims.
[ ] Users outside the United States. This checklist is US law; a global flow interacts with regimes that treat unfair terms very differently.

Phase 22. Ownership and annual review

[ ] [Gate] Name one owner with authority over assent design across product surfaces.
[ ] Put four triggers on one slide for product: a new signup or checkout flow, a change to how terms are presented, a change to renewal or cancellation, and any change to the terms themselves.
[ ] Give legal review a service level. A three-week turnaround will be routed around.
[ ] Re-run the five-user proof test annually and record the retrieval time.
[ ] Re-run the cohort diff annually.
[ ] Re-model mass-arbitration exposure against current user counts and fee schedules.
[ ] Report the three numbers to the board: proportion of users whose acceptance is provable, proportion bound to a pre-clause version, and artifact retrieval time.

Phase 23. Screen-by-screen reference

Four flows with the notice text that goes with each. Adapt the wording, keep the structure, and check each against Phases 3 and 4.

Registration.

[ Create account ]

By clicking Create account, you agree to our [Terms of Service] and acknowledge our [Privacy Notice]. The Terms include an arbitration agreement and class action waiver affecting how disputes are resolved. You may opt out of arbitration within 30 days.

[ ] Notice beneath the button, same visual field, body-copy size, links colored and underlined, arbitration bolded.

Guest checkout with a subscription.

[ Place order ]

By placing your order you agree to our [Terms of Sale] and [Terms of Service]. Your subscription renews automatically at $X per month until you cancel. Cancel any time in Account Settings or by emailing [address].

[ ] Price, cadence, and cancellation method sit in the same field as the control, satisfying 15 U.S.C. § 8403 and formation together.

Invited user joining an organization.

[ Join team ]

By joining, you agree to our [Terms of Service]. Your organization's administrator controls this account and can access content you create in it.

[ ] The second sentence is the one most often omitted, and it prevents a later dispute about expectations.

API key issuance or rotation.

[ Generate key ]

By generating a key you agree to the [API Terms], including the rate limits and the restrictions on automated access and redistribution in section 4.

[ ] Re-present on each rotation, to keep the actual-notice record current.

Phase 24. Rewrite reference for notice text

| Written | Rewritten | |---|---| | "See our Terms." | "By clicking Continue, you agree to our Terms of Service." | | "Terms apply." | "By clicking Continue, you agree to our Terms of Service and acknowledge our Privacy Notice." | | Footer link only | Notice line immediately above the primary control on every flow that creates a relationship. | | "Terms" in gray, unstyled | "Terms of Service" in link color, underlined. | | "We may update these terms at any time, effective immediately upon posting." | "We may update these terms. We will email you at least 30 days before material changes take effect, and changes will not apply to disputes that arose before the effective date." | | "Continued use constitutes acceptance." | "If you continue using the service after the effective date shown in our email, the updated terms apply." | | Arbitration disclosed only at section 19 | Arbitration and class waiver named on the assent screen, with the opt-out and its deadline. | | Renewal price disclosed after payment | Price, cadence, and cancellation method in the same field as the billing control. |

[ ] Run every notice line through this pattern and record who approved each replacement.
[ ] Confirm the replacement is accurate. A process promise the company does not keep is a consumer-protection problem with better facts than the vague line it replaced.

Phase 25. Evidence request, written in advance

Draft this as a standing internal request so it can go out unchanged on litigation day one. Name the system and the owner for each item.

[ ] Terms and privacy versions in force on each relevant date, from the version archive.
[ ] Rendered assent screen for the flow version and viewport class recorded for this user.
[ ] Acceptance event record for the user, with all logged fields.
[ ] Re-acceptance events, if any.
[ ] Modification notices sent to this user: message identifier, template, address, timestamp, delivery result.
[ ] Opt-out record, if the user opted out.
[ ] Support tickets referencing terms, cancellation, billing, or disputes.
[ ] Public web archive captures of the relevant flows and terms versions, gathered by the company before the other side gathers them.
[ ] Change log entries for every version in the user's history.
[ ] Flow version deploy history, showing when the design changed.

Why this belongs here rather than in a litigation memo. Half of these items do not exist in retrievable form at most companies, and week one of a lawsuit is a much worse time to learn that than an annual review.

Phase 26. Quarterly metrics

Six numbers, reported internally.

[ ] Percentage of active users whose acceptance can be proven. The headline metric.
[ ] Percentage bound to a version predating the current arbitration clause.
[ ] Artifact retrieval time, tested on ten random users per quarter.
[ ] Flows in the inventory not meeting the Phase 3 and 4 specification. Target: zero.
[ ] Modification notices sent, delivered, and re-accepted, as a rate.
[ ] Opt-out take-up rate. Low is expected; a spike means something changed in the disclosure.

Phase 27. Deployment-pattern boxes

Consumer mobile app.

[ ] Test the first-run assent screen on the smallest supported device and at the largest accessibility text size.
[ ] Archive the rendered screen per app binary version, since users on old builds saw old screens for months.
[ ] Confirm the app store listing's linked terms match the in-app version.

Marketplace with buyers and sellers.

[ ] Maintain separate assent flows and separate acceptance events for each side.
[ ] Confirm seller terms carry the indemnity and the enforcement discretion, drafted as discretion rather than commitment — the Barnes v. Yahoo! problem.

Freemium product with an upgrade path.

[ ] Treat the upgrade as its own assent event, since the paid relationship differs from the free one.
[ ] Align the upgrade screen with 15 U.S.C. § 8403 in the same pass.

Product sold through resellers or partners.

[ ] Confirm the partner's flow presents the company's terms and that the acceptance event reaches the company's log.
[ ] Contract for it, and audit it, because a partner's non-compliant screen binds nobody to your terms.

Developer platform or API business.

[ ] Build the actual-notice record deliberately: terms at key issuance, at rotation, in technical responses, and in direct communications about limits.
[ ] Keep warning correspondence, which is the strongest evidence in an automated-access dispute.

Phase 28. The engineering ticket, with acceptance criteria

Hand this over as written. Vague asks get deprioritized; specified tickets get estimated.

Presentation

[ ] Notice text renders immediately above or beside the primary control, in the same visual field, with no scrolling at any viewport in the supported matrix.
[ ] Notice text uses the body-copy size token and the standard-contrast color token. No custom small or muted variants.
[ ] Links within notice text use the link color token and are underlined, overriding any global underline suppression.
[ ] Notice text explicitly states that activating the control constitutes agreement, and names the linked documents.
[ ] Consumer flows additionally name arbitration and the class waiver, with the opt-out deadline.
[ ] No pre-checked inputs, and no content between the notice and the control.
[ ] A visual regression test fails the build if placement, size, or link styling changes.

Records

[ ] On acceptance, write an immutable event: user identifier, terms version identifier, privacy version identifier, ISO-8601 timestamp with timezone, surface, flow version, viewport class, locale.
[ ] Write synchronously with the action; no batch reconciliation.
[ ] On each deploy that changes an assent flow, capture and store a rendered image at every viewport class, keyed to the flow version.
[ ] Persist every terms and privacy version immutably with effective-date ranges.
[ ] Expose GET /internal/assent?user={id}&date={iso} returning the version in force, the acceptance event, and a link to the rendered screen.

Change management

[ ] Effective dates must be set in the future; the system rejects a past or same-day effective date.
[ ] Material-change flag triggers the email template and, for dispute-resolution, liability, licensing, or data-use changes, a re-acceptance interstitial with its own logged event.
[ ] Modification notices record message identifier, template version, recipient, timestamp, and delivery result.

Acceptance criterion for the whole ticket

[ ] A named non-engineer produces, for any user identifier and date, the version in force, proof of acceptance, and an image of the screen, in under ten minutes, without asking an engineer.

Phase 29. Working with product and design

[ ] Bring evidence, not doctrine. A product lead does not care about Berman v. Freedom Financial Network; they care that a company lost a certification fight because a link was gray.
[ ] Concede the conversion cost openly. Underlined links and an explicit assent line cost a measurable fraction of signups. Say so first and frame the trade against what the cohort audit found.
[ ] Sequence the cheap wins first. Link styling, placement, and removing pre-checked boxes are hours. The rendering archive is sprints.
[ ] Attend the design review for any flow that creates a relationship.
[ ] Give the four triggers as one slide rather than a policy: a new signup or checkout flow, a change to how terms are presented, a change to renewal or cancellation, and any change to the terms themselves.
[ ] Make the annual review jointly owned. A legal-only review discovers problems a year after they shipped.

Phase 30. The ninety-day plan

[ ] Days 1-10. Five-user proof test. Assent flow inventory. Compute the headline metric.
[ ] Days 11-20. Ship presentation fixes on the highest-traffic flow: placement, typography, link styling, assent language, pre-checked boxes.
[ ] Days 21-35. Complete the cohort audit and write the enforceable-version table. Eliminate effective-on-posting.
[ ] Days 36-55. Build the version archive and the acceptance event log. Stand up the thirty-day notice process with plain-language summaries.
[ ] Days 56-75. Build the rendering archive and the lookup endpoint. Bring the remaining flows to specification.
[ ] Days 76-85. Refresh the arbitration architecture; add or verify the opt-out; model mass-arbitration exposure; align the negative-option disclosures in the same pass.
[ ] Days 86-90. Name the owner and the declarant, run the cross-examination rehearsal, set the annual review date, and report the three numbers to the board.

Phase 31. Opposing a motion to compel

The same checklist, run in reverse, for the matter where the company is the plaintiff.

[ ] Attack formation before anything else. Delegation provisions send arbitrability to the arbitrator, but whether any agreement exists is always for the court, and every hour spent on unconscionability before formation is misallocated.
[ ] Obtain the screen as it actually was — public web archives, the client's own screenshots, device forensics, app store archives of prior binaries — and compare it against the movant's exhibit line by line.
[ ] Test the declarant. Demand the acceptance event, the rendered capture at the client's viewport class, and the version archive entry. A declaration resting on "standard practice" is an admission that no record exists and justifies formation discovery.
[ ] Run the Berman checklist against the exhibit. Notice below the button; type smaller than surrounding copy; unstyled link; no explicit assent language. One failure usually suffices.
[ ] Then run the modification chain. Registration date, version then in force, and what notice was given of each later change. The Douglas v. U.S. District Court argument disposes of many otherwise-enforceable clauses.
[ ] Check for an illusory promise — an unrestricted right to amend the arbitration provision itself, per Harris v. Blockbuster.
[ ] Then unconscionability, aimed at specific provisions: cost allocation, distant venue, one-way obligations, truncated limitations, stripped statutory remedies. Argue that severance would require rewriting rather than excising.
[ ] Watch the waiver clock. After Morgan v. Sundance, a defendant that litigated first may have waived without any showing of prejudice.

Outcome. The five-user test returned complete artifacts for two of five and took nine days. The cohort audit found four terms versions and a legacy population of forty-one percent bound to a pre-arbitration document whose only notice of the change had been a footer banner. The 2019 registration screen, recovered from a public archive, put the notice below the button in nine-point gray with the word "Terms" unstyled — no formation under Berman. Presentation fixes shipped in two weeks; the version archive, acceptance log, rendering archive, and lookup endpoint took four sprints. A six-week re-acceptance campaign converted seventy-eight percent of the legacy cohort, and the remainder were flagged rather than assumed. When the class action arrived eleven months later, the motion to compel was granted as to the re-accepting population on a declaration citing log entries, and the company had already reserved for the rest.

Key Authorities at a Glance

| Authority | Proposition | |---|---| | Specht v. Netscape | Notice must be tied to the act | | Nguyen v. Barnes & Noble | Browsewrap insufficient | | Meyer v. Uber Technologies | Uncluttered sign-in wrap enforced | | Berman v. Freedom Financial Network | Conspicuous notice; apparent hyperlink | | Oberstein v. Live Nation | Sign-in wrap upheld on clean design | | Sgouros v. TransUnion | Misleading screen defeats notice | | Register.com v. Verio | Repeat user with actual knowledge | | ProCD v. Zeidenberg | Terms after purchase with return right | | Hill v. Gateway 2000 | Shrinkwrap formation | | Douglas v. U.S. District Court | No binding by silent modification | | Harris v. Blockbuster | Unrestricted modification is illusory | | 9 U.S.C. § 2 | FAA enforceability | | 9 U.S.C. § 4 | Petition to compel | | 9 U.S.C. § 16 | Interlocutory appeal | | AT&T Mobility v. Concepcion | Class waivers enforceable | | American Express v. Italian Colors | Claim economics irrelevant | | Epic Systems v. Lewis | Employment class waivers | | Rent-A-Center v. Jackson | Delegation challenged specifically | | Henry Schein v. Archer & White | No wholly-groundless exception | | Morgan v. Sundance | Waiver without prejudice | | Coinbase v. Bielski | Mandatory stay pending appeal | | Carnival Cruise Lines v. Shute | Consumer forum selection | | Atlantic Marine v. U.S. District Court | Enforcement by transfer | | 28 U.S.C. § 1404 | Transfer standard | | 15 U.S.C. § 7001 | E-SIGN | | 15 U.S.C. § 45 | Unfair or deceptive design | | 15 U.S.C. § 8403 | Negative option requirements | | 17 U.S.C. § 106 | Rights the content license must reach | | Van Buren v. United States | Authorized access narrowed | | hiQ Labs v. LinkedIn | Contract over access theory | | Barnes v. Yahoo! | Promises create duties | | 47 U.S.C. § 230 | Motion sequencing |

The five things people get wrong

Buying a better clause instead of building the record. The clause is almost never the problem. The problem is that nobody can prove this user agreed to this version on this day.

Fixing registration and forgetting the other flows. Guest checkout, invited users, in-app upgrades, and API issuance each create a relationship, and each needs its own compliant screen and its own logged event.

Silent modification. Posting a new version and telling nobody leaves the company enforcing a clause against a population that never saw it — the Douglas problem, and the largest single source of unenforceable arbitration provisions.

Designing to a style guide that forbids underlined links. Berman turns on exactly this, and it is the cheapest fix on the list.

A declarant who describes practice rather than records. "It is our standard practice to present the terms" is an admission that no acceptance event exists, and it converts a straightforward motion into formation discovery and an evidentiary hearing.