Website Agreements: Browse-wrap vs. Clickwrap Agreements
Websites today are becoming increasingly more sophisticated in the way they engage and interact with customers. The monetization of the Internet has led to many advances in how people buy goods, do business online, and enter licensing agreements regarding the use of software. However, the rapid evolution of the internet as a medium for entering into contracts and purchasing products has left open certain legal problems dealing when a customer or contracting party manifests their assent to a contract or terms and conditions online.
A Browse-wrap agreement is one where the terms of an agreement are located on a website, but are often connected to the main web page of the product by a hyperlink to another web page that contains the contracts terms and conditions. Normally there is no affirmative manifestation of assent necessary to agree with the terms located on the linked web page. The customer must also affirmatively click the hyperlink to even access and become aware of the terms of the agreement.
By contrast a Clickwrap Agreement is one where the website requires the customer or user to affirmatively review the terms of an agreement through a series of pop-up windows that ask for the customers to click a button showing that they agree to the conditions. Under a Clickwrap Agreement the website puts the terms of the agreement directly in front of the user and requires them to show that they affirmatively accept the terms by clicking a button.
Enforcing Online Agreements
In the recent past courts have been deciding how to best deal with the different types of online agreements. In general, courts have been hesitant to enforce Browse-wrap Agreements while allowing the enforcement of Clickwrap Agreements. The reason for this is the likely notice to the customer or user under each type of agreement. Courts have reasoned that users are more likely to be apprised of all the terms and conditions when they are forced to affirmatively accept terms and conditions placed in front of them by the website under a Clickwrap Agreement. However, this does not completely discount Browse-wrap Agreements. When a website operator can show that the user or customer had actual or constructive notice of the terms and conditions a question of whether the agreement can be enforced is raised.
Using Agreements on Your Website
While Browse-wrap Agreements are certainly viable means of creating an online agreement, you are more likely to create a legally enforceable agreement under a Clickwrap agreement in the eyes of the law. While the world of online contracting is still evolving, there are certain legal pitfalls and questions that have already been settled in the eyes of the law. It is important to consult with your local Burlington County business attorney to ensure that you protect yourself with enforceable agreements with customers and end users of your licensed software.