A website agreement or terms is more likely to be enforceable if there is 1) actual or constructive notice of the terms and 2) affirmative or implied consent to the terms.
Having website agreements are not enough
Have you notice most websites and mobile applications require a user to agree to terms before continuing to use the website or application?
Just having a terms of use or terms of sale on your website may not be enough for them to be enforceable against a purchaser or user. To increase the likelihood for courts to find the contract binding on the user, the website owner can take additional steps.
- Website agreements are listed in the footer of the webpage.
- Before registering or purchasing a product, the agreement is presented to the user.
- A statement stating “I agree” or by checking the box, the user agrees to the terms.
- The check box is not pre-selected and the user selects the checkbox themselves to agree.
Clickwrap vs Browsewrap
If an agreement is just listed on the website, the agreement is typically considered a browsewrap agreement. If all of the additional steps are taken above, a browsewrap agreement is transformed into a clickwrap agreement.
Browsewrap: The agreement is listed on the website, however, the user does not have to take additional steps to agree to the agreements. There have been times where courts do not find a browsewrap agreement enforceable. On the other hand, there are times when courts have enforced the browsewrap agreement when the website owner was able to prove there was notice.
In the case of actual notice, the courts have found the agreement enforceable when there was a letter from the owner to the user or a prominent notice on the site stating the use of the site is considered an agreement.
If there is no actual notice, the website owner will have to prove there was constructive notice, which has a high bar to prove.
Clickwrap: The agreement is presented to the user and the user must take some action to affirmatively agree to the terms before continuing with the use of the site. The courts have routinely found that a clickwrap agreement is enforceable because there was assent to the terms when clicking on the checkbox with a statement of acceptance of the terms.
Following the above steps will help increase the likelihood a court will find that there is notice of the terms and there was assent to the terms.