I’ve been involved in drafting numerous versions of online agreements, including privacy policies, service agreements, pricing policies, various other policies and last but not least both browsewrap and clickwrap agreements.  I’ve done a quick post on case law with respect to browsewrap and clickwrap agreements in the past, and was recently asked to speak for a webinar entitled Drafting Clickwrap and Browsewrap Agreements: Advanced Strategies for Enforceable Online Contracts held by Strafford.  If you’d like to listen to the webinar email me or contact them.

I feel that more and more contracting is going to be done over the Internet in the future and I am going to start a series of blog posts on drafting these types of browsewrap and clickwrap agreements as well as case law in the area, which serves to let corporate lawyers know how they have to draft the agreement, and have the users accept it.

So here we go, first I’ll describe what these licenses are in more depth, and then in later posts I’ll explore each of them and case law and drafting considerations:

Clickwrap Licenses

  • A software license (for actual software, website, application, etc.) that requires the user to affirmatively click on a button or checkbox with a term such as “I Agree”, prior to use.
    • Sometimes called a “click-through” or “click-to-accept” license.
  • Users usually have opportunity to scroll through and review the terms prior to assent.
  • If the user does not agree with the terms he or she cannot proceed, their only choice then is to not click on the “I Agree” button and not use the software.
  • Example (not of the entire license, just the flavor of how it works):
    • By clicking on the “I Agree” button you are agreeing to be bound by the following terms and conditions.

Browsewrap Licenses

  • Browsewrap agreements are software licenses that do not require affirmative consent other than the user’s initial or continued use of the software, website, or application.
  • The use combined with the knowledge of the terms and conditions of the browsewrap license are what constitutes the user’s assent.
  • Generally, courts will enforce browsewrap licenses only if the user had adequate and reasonable notice of the license terms, and took some action to assent to such terms.
  • Example (not of the entire license, just the flavor of how it works):
    • By using this website, you are agreeing to be bound by the following terms and conditions. If you do not agree to these terms and conditions, you may discontinue use of the website at any time