How to get existing clients to accept your updated terms

You rewrote your MSA or service terms: a new AI clause, a new subcontractor, a change to the liability cap. Now 80 existing clients need to be on the new version, and you need to know, client by client, who agreed.

Most advice on updating terms is written for consumer websites or for UK law. This page is for a US B2B services company that sends the same standard terms to many clients. It covers what the leading US case says about notice, what your current contract may already say about changes, and a rollout you can run in a couple of weeks.

Not on its own. The leading US case is Douglas v. U.S. District Court, 495 F.3d 1062 (9th Cir. 2007). Talk America added new terms, including an arbitration clause and extra charges, to its service contract and posted the revised contract on its website. The customer said he was never told. The Ninth Circuit held he wasn't bound.

The court's reasoning is the part worth knowing:

• "Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side."
• "A revised contract is merely an offer and does not bind the parties until it is accepted."
• "Even if Douglas's continued use of Talk America's service could be considered assent, such assent can only be inferred after he received proper notice of the proposed changes."

Two cautions. Douglas involved a consumer, not a business client, and it is one circuit's decision. It is the case most often cited for the principle, but it doesn't settle every B2B situation. Courts look at the contract between the parties and at what notice was actually given. What it does show is the direction of travel: a quiet website update is the weakest position you can be in.

Start with the contract each client is on today, because it may already set the rules. Many B2B agreements carry one of these:

• An amendment clause saying changes must be in writing and signed or agreed by both parties.
• A changes clause letting you update certain documents, such as an acceptable-use policy or a sub-processor list, after notice, sometimes with a right to object or terminate.
• An order of precedence saying which document wins when the MSA, an order form and a policy disagree.

What those clauses say, and whether a particular change fits them, is a question for your counsel. The operational point is simpler: if clients signed different versions over the years, they may have different change rules. Find out which version each client is on before you plan the rollout.

Notice tells the client something changed. Acceptance is the client agreeing to it. If you want to rely on the new terms, plan to collect acceptance and keep proof of it.

A defensible rollout has seven steps. None of them needs a lawyer to run, though the first one may need a lawyer to decide.

1. Classify the change. Is it material, such as new liability terms, a new data use or a new arbitration clause, or housekeeping, such as a fixed typo or a new company address? Your counsel decides where the line is. The answer decides whether you ask for re-acceptance or send a courtesy notice.
2. Write a plain change note. Three to six sentences on what changed and why, in the words you would use on a call. The note explains; it doesn't replace the text.
3. Send the full new text, not a summary. The client should be able to read exactly what they are agreeing to. A link to a page that may change again later is weaker than the version itself.
4. Ask for one affirmative act. A click on "I accept", a signature, or a written reply that clearly agrees. Silence and continued use are the weakest forms of assent.
5. Address the right person. Send it to the contact who can agree for the client, usually whoever accepted the last version.
6. Set a date and send reminders. Give a reasonable window, then follow up with whoever hasn't responded.
7. Keep the record per version. For each client: which version, accepted when, by whom, from which email address. You will be asked for this in a dispute, an audit or a client's security review.

The e-signature and accept-page rows both produce strong evidence. The difference is the work of sending to 80 clients and seeing who is left. If you are weighing a signature against a click for the terms you send to every client, see clickwrap vs e-signature.

Electronic acceptance is valid in its own right. Under the federal E-SIGN Act, a contract "may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation" (15 U.S.C. § 7001(a)(2)).

The rollout isn't done when the email goes out. It's done when every client is on the new version or you have decided what to do about the ones who aren't. That needs a view by version: who accepted v3, who is still on v2, who never accepted anything.

This is the part Pacts handles. When you publish a material change to a template, Pacts drafts a re-acceptance campaign covering every client contact who isn't yet on the new version. Before anything goes out you write a short note on what changed; the note is required. Contacts who accepted the old version get an email with your note and a link to accept the new one. Contacts who never accepted get the normal request. A minor publish doesn't ask anyone to re-accept; you can send prior acceptors a courtesy notice instead.

The coverage board then shows each client's state, including clients whose acceptance is on a superseded version. From the campaign you can re-send to everyone still outstanding. Each acceptance gets a certificate recording the version, the time and the accepting company, with a hash of the exact text, and anyone with the link can check that the text hasn't been altered.

If your book is past the point where a spreadsheet keeps up, the thirty-clients page covers that moment, and Pacts for agencies shows the setup for an agency's client terms. A new sub-processor is a common trigger for a terms update; sub-processor change notices under US privacy laws covers what the statutes say about it.