Browse-Wrap, Click-Wrap, and In-Between

For decades, online service providers and web and mobile site owners and operators have sought to bind their users to contractual terms and conditions by way of click-wrap, browse-wrap, and similar methods. For nearly as long, these parties have fought over the enforceability of such online contracting efforts. The path to an enforceable online contract should be clear by now, right?

You’d think so. Yet, even today, the formation of these agreements continues to be litigated.

Click-Wrap Enforceability: Winners and Losers

The keys to binding click-wrap and browse-wrap agreements include notice, clarity, and assent. Generally speaking, a “click-wrap” agreement is one where the user must expressly manifest assent, typically by affirmatively ticking an “I agree” tick-box. A “browse-wrap” agreement, on the other hand, is one purporting to bind the user merely by being posted to the site or online service the user is accessing or using.

In Dohrmann v. Intuit (9^th Cir. 2020), Intuit successfully defended the enforceability of its TurboTax click-wrap terms. The terms were conspicuously hyperlinked from the TurboTax online sign-in page, which required the user to click a sign-in button to proceed to use the service. There were three hyperlinked sets of terms, each of which appeared immediately below the sign-in button and was in a different color than the surrounding text. 

In other cases decided in the past two years, some online vendors have been equally successful (see Skillz, GoSmith, and United Parcel Service), while others have not (see Huuuge and SquareTrade).

Clear Your Path to Enforceability

What can make an online agreement easier to enforce?

• Choose click-wrap over browse-wrap, requiring the user to affirmatively tick a box to manifest assent to the terms. Require the user to scroll through the terms or visit the pages where any hyperlinked terms appear, before the user is able to manifest assent.

• Conspicuously call out the existence and effect of the online terms. Do not require the user to scroll down the page to see the call-out. Use a font size that is no smaller than, and has a different color than, the surrounding text.

• State the existence of any hyperlinked terms in close proximity to any “I agree” button or other tool for manifestation of user assent. Avoid hyperlinks within hyperlinked terms, and do not require the user to proceed through multiple web pages to ultimately get to the actual terms.

• Require assent to the terms when the user is first engaged by the site or online service, rather than after the user sets up an online account or receives online services. Don’t just ask the user to read the terms – mandate that the user read them.

• Maintain back-office technology that reliably and accurately records each user’s assent to the online terms, including the date of assent and the form of terms assented to.

Thank goodness no one said shrink-wrap terms....

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