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Internet Agreements

What is a Clickwrap Agreement and Why You Should be Careful With Them

By July 8, 2022No Comments

We live in a world where more and more agreements are executed by click rather than signature, with the two most common internet agreements being browsewrap and clickwrap agreements. We discussed browsewrap agreements in a prior blog regarding forum selection clauses. You can access it here: Article

Clickwrap agreements rather, are those in which the user has to click “OK” or “I agree” before using a website or service. Most courts in the US will enforce clickwrap agreements.

There are several versions of clickwrap agreements. One type makes you scroll down to the bottom of the page — and run your eyes throughout, even if you do not read the agreement — to then make you click OK at the very end. In another type, you are shown some language but the actual terms, like the user agreement or privacy policy, are available via a hyperlink. They look something like this:

These are also regularly enforced by US courts throughout. Courts reason that a consumer can have “easy access” to the terms by clicking on the hyperlink. They will be enforced against you as long as you clicked or had access to the electronic contract via a conspicuous, accessible hyperlink. (A different scenario occurs if the hyperlink contract is hidden or not easily accessible).

Consumers therefore should be aware of this when they are purchasing products that require their signature via a click. For example, when you are using softwares and apps on your cell phone, these clicks you click when you set up that app will matter later in the event of a problem.

The e-contract may say that, though you reside in Florida, you will have to go litigate in a distant Court in Wyoming. Finding a distant lawyer in Wyoming itself can be challenging and that per se may kill any action you may have against that corporation. The electronic contract may also force you to a mandatory arbitration process. This means that the doors of the courthouse will be closed to you and you will have, by virtue of your click, to go to a private dispute resolution process that does not have the advantages of a judge or a jury. Most corporations prefer arbitration and make a lot of efforts to avoid courthouses—that in and of itself should indicate you something.

The service industry—your internet or cable provider, your gym membership and the like—are also using exclusively clickwrap agreements. Thus, if that membership was for a one year term, and you clicked on it, it will probably be enforceable and you will not be able to get out of that membership until the end of that one year term.

In short, be careful with what you click. Do not take these clicks casually just because it is something that you cannot negotiate or change. Unfortunately, courts will routinely enforce these agreements regardless of the difference in bargaining power between the parties, the unfairness of the terms, or whether you read the agreement or not.

For more information about internet contracts, contracts in general, or a contract dispute, contact a contract attorney at Ayala at 30-570-2208 or email miami contract lawyer Eduardo A. Maura at eduardo@ayalalawpa.com

You can also schedule a contract case evaluation online at https://www.lawayala.com/consultation/

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