Etrade’s online contract gave it the right to change terms of the contract and fees simply by posting the fees to its site. The contract essentially said that users were obligated to check now and then for amendments. A well respected federal judge in California struck that. Roling v. E*Trade Securities LLC, 2010 WL 4916401 (N.D. Cal. Nov. 22, 2010). Essentially, the judge rejected putting the onus on consumer users to check for amendments from time to time. Judges realize that consumers don’t check for amendments. Instead, the contract should promise to give advance notice of changes and to make them prominent.
There are ways to change your contracts, so that the changes will stick. Here is a best practice checklist for changing your online contracts.In every online agreement, promise to do these things, then do them and keep screenshots and other proof that you did them:

  • Give 30 days’ notice of changes
  • Post a link to the changed contract – prominently and above the fold
  • Send the changes to your registered users by email
  • Require registered users to click through the new contract, marked to show changes, the next time they sign on to the site
  • Make sure the contract’s changes are clearly marked (there is software for this and you may be able to use Word’s Track Changes feature)

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