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For companies drafting terms of use that they want to later enforce: • Require affirmative consent to the terms of use with a “click.” • Use language manifesting affirmative consent, such as, “Yes, I agree to the terms of use,” at the point of click. • Use a font that is legible on all relevant platform devices (i.e., font sizes must not be so small on a mobile device as to be illegible). • Require the “click” before the user can use the application, use the software, play the game, or make a purchase. • Provide a hyperlink, accessible through the relevant platform at the point of click, to the terms of use. But consider carefully whether you could present and require review of the terms of use before accepting that click. • Think very carefully before relying on a browsewrap. Venable / 21