Clickwrap and Browsewrap Agreements

Clickwrap and browsewrap agreements are two different types of online contracts that are commonly used by businesses to protect themselves and their customers. These agreements outline the terms and conditions of a transaction or service and provide a legal framework for resolving disputes that may arise.

Clickwrap agreements, also known as clickthrough agreements, are contracts that require the user to click a button or check a box that signifies their agreement to the terms and conditions of the agreement. These agreements are commonly used in e-commerce transactions, software downloads and account creation on websites. Clickwrap agreements are legally binding and enforceable if certain conditions are met.

One of the requirements for a clickwrap agreement to be legally binding is for the user to have a clear understanding of the terms and conditions of the agreement. The agreement should be presented in a conspicuous manner, and the user must be given the opportunity to read and review the terms before agreeing to them.

Another requirement for a clickwrap agreement to be legally binding is for the user to provide their consent voluntarily. This means that the user must have a genuine opportunity to opt-out of the agreement if they do not agree with the terms. The opt-out process should be simple and clear, and the user should not be penalized for choosing not to agree.

Browsewrap agreements, on the other hand, are contracts that are not explicitly agreed to by the user. Instead, the terms and conditions of the agreement are posted on the website or application where the service or transaction is taking place. The user is assumed to have agreed to the terms simply by using the service or completing the transaction.

Browsewrap agreements are less enforceable than clickwrap agreements because it is harder to prove that the user was aware of and understood the terms and conditions of the agreement. However, browsewrap agreements can still be legally binding if certain conditions are met.

One of the requirements for a browsewrap agreement to be legally binding is for the terms and conditions to be posted in a conspicuous manner, such as a banner or pop-up window. The user should be given ample notice of the agreement and should be able to access it easily.

Another requirement for a browsewrap agreement to be legally binding is for the user to have actual or constructive knowledge of the agreement. This means that the user must have had a reasonable opportunity to become aware of the agreement and its terms. This can be achieved by placing a hyperlink to the agreement on the website or application that is clearly labeled and easily accessible.

In conclusion, clickwrap and browsewrap agreements are two types of online contracts that are used to protect businesses and customers. Both types of agreements have their own requirements for enforceability, but clickwrap agreements are typically more enforceable than browsewrap agreements. As a professional, it is important to understand these distinctions and to ensure that these agreements are presented in a clear and conspicuous manner to keep businesses and their customers protected.