As more and more transactions are conducted online, businesses are increasingly relying on clickwrap and browsewrap agreements to protect themselves and their customers. While both types of agreements serve similar purposes, there are some key differences between the two that are important to understand.
A clickwrap agreement is a contract that a user must agree to before they can access or use a service or product. These agreements are called “clickwrap” because they typically require the user to click a button or checkbox indicating their agreement before they can proceed. Clickwrap agreements are usually used for more complex or high-risk transactions, such as software licensing agreements, online purchases, or agreements with legal implications.
Because clickwrap agreements require a user to take an affirmative action to indicate their agreement, they are generally considered more enforceable in court. This is because the user has explicitly agreed to the terms of the agreement and cannot claim ignorance or lack of consent. Additionally, clickwrap agreements can track user activity and better ensure compliance with the terms of the contract.
On the other hand, a browsewrap agreement is a contract that a user agrees to simply by browsing or using a website or service. These agreements are typically found in the footer or terms of use section of a website, and the user is considered to have agreed to the terms simply by continuing to use the site. Browsewrap agreements are often used for less complex transactions, such as accessing a blog or forum, and are generally considered less enforceable in court.
The key difference between clickwrap and browsewrap agreements is the level of user consent required. Clickwrap agreements require explicit consent, while browsewrap agreements rely on implied consent. Because browsewrap agreements do not require a user to take any specific action to indicate their agreement, they are often considered less enforceable in court.
In conclusion, while both clickwrap and browsewrap agreements serve similar purposes, the level of user consent required differs significantly. Clickwrap agreements are generally more enforceable because they require explicit consent, while browsewrap agreements are less enforceable because they rely on implied consent. As a business, it is important to carefully consider which type of agreement is most appropriate for your transactions and to ensure that your agreements comply with all relevant laws and regulations.