Building Terms of Service That Survive a Motion to Compel: A Practitioner's Guide to Assent Design, Notice, Modification, and Records
By Casey Scott McKay ·
This guide takes a company from a terms of service that cannot be enforced to one that can, and it is written for the lawyer who will have to sign the declaration. It begins with the audit that establishes what the company can currently prove, then specifies the assent screen in terms a product team can implement and a court will credit. It covers the three records that decide these motions - the rendering archive, the version archive, and the acceptance event log - and the modification process that keeps a legacy cohort from silently invalidating a clause. It works through arbitration architecture, delegation, class waivers, opt-outs, and the mass-arbitration provisions now being drafted in response, with the unconscionability constraints on each. It ends with the declaration, the motion, and the annual review.
IP and Technology > Internet | Guide | Published 26 August 2024 - Updated 24 May 2025 | Casey Scott McKay - marksy.us
Summary. This guide takes a company from a terms of service that cannot be enforced to one that can, and it is written for the lawyer who will have to sign the declaration. It begins with the audit that establishes what the company can currently prove, then specifies the assent screen in terms a product team can implement and a court will credit. It covers the three records that decide these motions — the rendering archive, the version archive, and the acceptance event log — and the modification process that keeps a legacy cohort from silently invalidating a clause. It works through arbitration architecture, delegation, class waivers, opt-outs, and the mass-arbitration provisions now being drafted in response, with the unconscionability constraints on each. It ends with the declaration, the motion, and the annual review.
Keywords: assent design · sign-in wrap · notice conspicuousness · hyperlink styling · acceptance logging · rendering archive · terms versioning · cohort audit · re-acceptance interstitial · modification notice · arbitration clause drafting · delegation provision · class waiver · mass arbitration batching · opt-out design · declaration practice · motion to compel arbitration · unconscionability defense · negative option compliance · engineering specification
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