We live in the world of agreements by “click” rather than signature. The digital era has converted the world of contract into clicks, bytes and electric pulses.
In this new contract world, there are two common internet type of agreements: “browse wrap” and “clickwrap” agreements.
Browse wrap are agreements in which the user agrees to the terms simply by using the website or product. You are reading content in someone’s website? you are using a software? Just by using it, the creator wants to bind you to its usage-terms which may be in some arcane section of the website via a link. Because of the little notice they give consumers about their terms, browse wrap agreements are generally not enforced by courts. In other words, you should not be all that concerned about these types of agreements.
The other type of internet agreements are “clickwrap” contracts. In a clickwrap agreement, the drafter will have you scroll down to the bottom of the agreement (while you presumably “read”) to then have you click an “ok” or “agree” bottom before using the website or service. There is no reading of the terms (or rarely ever is), no negotiation, no bargaining, and no possibility to alter the terms. Yet, most courts will enforce clickwrap agreements. Courts generally have decided that the clicking “ok” or “agree” is a sufficient show of assent to make the contract voluntary. Further, Courts assume that the consumer read or had an opportunity to read the terms, and thus, not enter into the contract to begin with.
Courts enforce clickwrap, even in cases where the terms are simply via a link next to the “agree” bottom rather than in the scroll down fashion we described earlier.
What to do?
Consumers. Consumers should be very aware of the enforceability of clickwrap agreements. If you as a consumer in Florida don’t feel comfortable that when a product you are buying breaks down, you will have to litigate in Texas (because that’s what your clickwrap agreement says), then you should not buy that product.
Small Businesses. If you as a business do not want to be liable for certain things related to your products, you better make sure that your internet contracts are clickwrap rather than browse wrap.
For more information about internet contracts contact eayala@ayalalawpa.com or call or text at 305-570-2208.
