
Companies that provide services through online platforms or mobile applications employ various methods to obtain user consent for online agreements. These electronic contracts ensure that users are aware of the terms and conditions agreed to when using a website or service.
Understanding the distinctions between the common methods of obtaining that consent and the enforceability of those methods is crucial for both users and businesses. While technology is evolving rapidly, the courts are applying traditional principles of contract.
The four most common methods are browsewrap, sign-in wrap, scrollwrap, and clickwrap agreements.
Browsewrap Agreements
A “browsewrap” agreement occurs when a website merely provides a link to the terms and conditions and does not require the purchaser to click an acknowledgment during the checkout process. See, e.g., Vitacost.com, Inc. v. James McCants (Feb. 15, 2017). The hyperlink is usually found at the bottom of the page and users are not required to take any affirmative action to indicate their consent. Instead, users are deemed to have accepted the terms by simply using the website even if they never open the hyperlink. The primary flaw in browsewrap agreements is that users may not be aware of their existence or content, making enforceability a challenge. Courts typically require that users have actual or constructive knowledge of the terms for these agreements to be upheld. At least one Florida court has observed, “[u]niformly, courts have declined to enforce browsewrap agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them.” Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014).
Sign-in Wrap Agreements
Sign-in wrap agreements are those “where a user signs up to use an internet product or service, and the sign-up states that ‘acceptance of a separate agreement is required before the user can access the service.” Eglin Federal Credit Union v. Baird, Case No. 1D2023-1866 (Fla. 1st DCA 2024) (internal citation omitted). These agreements often present a hyperlink to the terms and conditions near the sign-up button, with language indicating that by signing up, users agree to these terms. As compared to browsewrap agreements, sign-in wrap agreements offer a stronger form of consent because users are explicitly informed that their registration indicates acceptance. The enforceability of sign-in wrap agreements hinges on the clarity of the notice and the proximity of the hyperlink to the action button.
Scrollwrap Agreements
Scrollwrap agreements present users with the entire agreement and require them to physically scroll through the terms and conditions before they can agree. This method ensures that users are allowed to see the terms before agreeing. Users typically have to check a box or click a button indicating their acceptance after scrolling through the entire document. Scrollwrap agreements are generally considered to be more enforceable than browsewrap or sign-in wrap agreements because they ensure users have had the opportunity to review the terms.
Clickwrap Agreements
Clickwrap agreements are the most explicit form of user consent. The Florida Second District Court of Appeal defined a clickwrap agreement “as one that is entered online by proposing contractual terms and conditions of service to a user, who then indicates his or her assent to the terms and conditions by clicking an ‘I agree’ box.” Doe v. Natt, 299 So. 3d 599, 601 n.2 (Fla. 2d DCA 2020). Clickwrap agreements generate clear evidence that users have accepted the terms and are broadly recognized by courts as enforceable because they require user consent through affirmative action. Such agreements have been enforced even where the clickwrap agreement links to other terms of service. See, e.g., Airbnb, Inc. v. Doe, 336 So.3d 698 (2022) (approving the incorporation by reference of AAA rules). The key to a valid clickwrap agreement is to ensure that the terms are presented clearly and that users must take definitive action to accept them.
Conclusion
Business owners should be cautious in selecting the most enforceable and transparent consent method for their electronic contracts. Users must be vigilant when using online services and applications as they may be agreeing to terms of service without understanding them.
Users should also be careful about accepting updated terms of service. In my recent post, New York Court Finds Clickwrap Process Sufficient To Establish Valid Agreement To Arbitrate, I wrote about a user who accepted updated terms of service by clicking on Uber’s app and the court found that the revised arbitration provisions applied to an earlier accident claim.