Clickwrap, Browsewrap and Other Forms of Digital Agreements

E-signatures and digital contracts have become central to business operations, offering convenience, speed, and a paperless trail. However, their legal enforceability hinges on several factors, including the nature of user consent, the structure of digital agreements and the careful drafting of jurisdiction and dispute resolution clauses.

Clickwrap and browsewrap agreements are two predominant methods of obtaining user consent in online contexts. Clickwrap agreements require users to affirmatively signify their acceptance of terms, often by clicking an “I Agree” button. Courts generally view clickwraps as enforceable, provided the terms are clear and readily available and the user’s assent is explicit.

Browsewrap agreements, by contrast, do not require affirmative action from the user. Terms of service are typically accessible via a hyperlink at the bottom of a website, and mere use or browsing is deemed consent. Courts scrutinize browsewraps more rigorously, often refusing to enforce them unless it is shown that the user had actual or constructive notice of the terms. 

To ensure enforceability of digital contracts, companies should adhere to certain best practices. This means presenting terms in a clear, conspicuous manner and requiring affirmative consent—such as the ticking of a box or clicking a dedicated acceptance button. The agreement should be easily accessible both at the time of contracting and subsequently. Records of user consent, including timestamps and the version of terms agreed to, should be securely maintained. Additionally, if the terms are updated, users should be notified and required to accept the new terms before proceeding.

Online agreements often span multiple countries and legal regimes, so it is important to include jurisdiction and dispute-resolution clauses. A jurisdiction clause specifies which court or location will handle disputes. A dispute resolution clause determines how conflicts will be settled. For both of these, careful drafting is essential. Courts may refuse to enforce a jurisdiction clause if it appears unfair, ambiguous or excessively burdensome. Arbitration clauses must be comprehensive, specifying not just the requirement to arbitrate, but also the governing rules, location and language of proceedings.

The assistance of a skilled e-commerce lawyer can be indispensable in creating enforceable digital agreements and in managing legal risk. An attorney can tailor contract terms, navigate the regulatory framework and ensure that every agreement is both lawful and practical. Professional guidance can also help safeguard your company from legal pitfalls during the course of e-commerce.

Andrew M. Jaffe, Attorney at Law advises businesses in all aspects of e-commerce, including formation and review of online agreements. Please feel free to call me at 330-845-6027 or contact my office through email at [email protected] to arrange a free, no obligation consultation.