Click-Wrap Agreement Definition
A clickwrap agreement is a type of agreement between an online user and a service provider that requires the user to agree to the terms and conditions of a website before gaining access to the website. Electronic media forms, software licensing firms, websites and online businesses use the clickwrap agreement to get the consent of a user before displaying website content or providing services.
A clickwrap agreement is otherwise called a clickthrough agreement. It gives individuals the choice to accept or decline a service, content or policy. The user must click “I agree”, “I accept” or “Ok” before the content or service is provided, otherwise, the user has declined.
A Little More on What is a Click-Wrap Agreement
Clickwraps are often used by software licensing firms, websites and social media services to get the consent or agreement of a user prior to the use of the product or access to the website. Using the digital media, service providers see to reach an agreement with their clients or users before they proceed to rendering the service. An individual user does not have access to the content of a website or aservie without agreeing to the terms and conditions first.
Clickwrap contract or agreement was derived from “shrink wrap contracts” which commonly describes purchases where buyers do not access until they tear the shrinkwrap. And once they tear the shrinkwrap, they have agreed or given their consents to the product and take the whole risk.
Basically, an end-user will give consent to the display of website contents or use of a service by clicking on “I agree”, “I accept” or “Ok” in the dialog box. If an end-user is not interested in the website or content, the user can simply click the cancel or close button. Different service providers, websites or social media services design their clickwrap agreement differently but the meeting point of all clickwraps is that a user must either click agree or cancel to proceed to the webpage or leave.
Cases in Detail
As described in diverse court cases, there are certain qualities paramount to clickwrap license or agreements, these include;
- A clickwrap agreement or license must present a user the choice of either accepting or declining a service or product.
- Users must not be forced or coerced into entering an agreement to access a service or website without giving their assent.
- Unless a user gives his assent by clicking on the “yes” or “I agree” button, the software cannot be obtained or the service accessed.
- Giving assent to a software or service means that the user has accepted all the terms of the contract.
- For software licensing companies, if a user or client rejects the terms of the contract, the software can be returned.
Legal consequences in the European Union
In the European Union, it was recently decided in a court case that clickwrap agreements can be used as proof of acceptance in certain contracts or for specific products. The court case: C-322/14 gave rise to the acceptance of clickwrap agreements in the European Union.
References for Click-wrap agreement
Academic Research for Click-wrap Agreement
Just click here: Article 2B’s failure to guarantee adequate manifestation of assent in click–wrap contracts, Harrison, Z. M. (1997). Fordham Intell. Prop. Media & Ent. LJ, 8, 907. This paper highlights the importance of Click-Wrap Contracts (CWC) and the failure of its article 2B to ensure the appropriate manifestation of assent in CWCs. Suppose, a person is surfing the Internet and wants to download some software for playing classical music of the WWW (World Wide Web). He comes across a vendor whose program is reasonably priced and meets exactly the same requirements as he is looking for. Therefore, he enters his details, i.e. his name, email ID, postal address and credit card number. After filling these fields, he finds an opening page popping up with a multi-page license agreement on the screen. He cannot proceed without putting a tick mark on the checkbox of this agreement.
Shrink-wrap, click–wrap, now browse-wrap, Pike, G. H. (2004). Browse-Wrap Contracts are the most recent development in the field of e-resource user agreements that started with licenses of click-wrap and shrink-wrap. Such agreements define the intended benefits of the e-resource, e.g. a website. These licenses are unilaterally offered as a fixed contract that one totally accepts or rejects. However, Browse-Wrap Agreements (BWA) differ on the ground that they do not need any affirmative act, for example, clicking the ‘I agree’ button by the user. Similarly, the user is not necessarily required or redirected to access the web page containing the agreement text. The act of using the site presumes the contract. There is a legal query which the commentators and court authorities are trying to ask is whether BWA may be enforceable agreements.
Electronic Commerce—Click–Wrap Agreements: The Enforceability of Click–Wrap Agreements, Gatt, A. (2002). Computer Law & Security Review, 18(6), 404-410. This research has been carried out to address the practical problems related to the enforceability and use of click-wrap contracts. The author presents preliminary results of fundamental research in order to determine the understanding, awareness and attitude of the consumer to these contracts. He describes the importance and role of Click-Wrap Agreements (CWA) in e-commerce.
Click-through agreements: Strategies for avoiding disputes on validity of assent, Kunz, C. L., Del Duca, M. F., Thayer, H., & Debrow, J. (2001). The Business Lawyer, 401-429. Though case law containing Click-Through Agreements (CTAs) is still sparse, it has developed enough to identify policies and trends in less number of cases decided yet which help transactional advocates in advising clients on using and setting up e-form contracts. Similarly, they help the litigators in arguing and resolving disputes on CTAs. The working group on e-contracting practices assembled 15 strategies to avoid disputes on the mutual assent process validity and bibliography of the existing case law of Canada and the US and commentary on CTAs. It proposed the strategies and the attached bibliography in Chicago at the ABA yearly meeting on 5th Aug 2001.
The validation of shrink-wrap and click–wrap licenses by Virginia’s Uniform Computer Information Transactions Act, Spooner, S. J. (2001). Richmond Journal of Law & Technology, 7(3), 27. Click-Wrap and Shrink-Wrap Licenses have a significant role in allowing consumers and businesses to use and get access to a number of computer software and hardware. These licenses shift computer relevant technology effectively to vendors, consumers and customers by clearing the terms of software use without implying the Copyright Act, 1st sale doctrine. While Click-Wrap and Shrink-Wrap licenses are necessary for the software industry and overall a new economy, the applicable law remains unsettled and unclear. Courts have tried to design a coherent framework regulating the enforceability and validity of these licenses according to the Uniform Computer Information Transactions Act (UCITA) of Virginia.
Wireless location privacy protection, Schilit, B., Hong, J., & Gruteser, M. (2003). Computer, 36(12), 135-137. The communication and computing technologies are converging after 2 decades of hype or more than. Java-enabled mobile phones run a powerful apps host, including access to mobile internet whereas several notebooks offer fast wireless connectivity as a standard characteristic. The major decision while buying a PDA is whether to avail WiFi capability or integrated cellular services. In personal wireless devices, there is an emergence of location-based services as the killer application of the nearest future. However, there are some securities on location privacy. This paper covers the areas of economic damages, intermittent connectivity, privacy risks, user interfaces, network privacy, etc.
Internet hotel reservations: the “terms and conditions” trap, Wilson, R. H. (2007). Cornell Hotel and Restaurant Administration Quarterly, 48(4), 361-369. The web-based method which most of the hotel firms use to alert the customers about the terms and conditions to make an online reservation may not hold up in the lawsuit event. Many courts enforce Click-Wrap Agreements (CWA) to the individuals while making a reservation on the website. In a CWA, a customer cannot complete a reservation unless he clicks on the ‘agree’ button for the sale terms and conditions. However, many hotel sites use Browse-Wrap Agreement (BWA) which consists of the terms and conditions but the customer can complete the reservation without expressing his assent.
Browse-wrap agreements: Validity of implied assent in electronic form agreements, Kunz, C. L., Ottaviani, J. E., Ziff, E. D., & Moringiello, J. M. (2003). Bus. Law., 59, 279. This paper evaluates the law governing implied assent rules, the Browse-Wrap Agreements (BWA), contract law principles addressing implied assent (IA) in the paper world and implementation of these rules to e-contract setting. On the basis of precedents and policy arguments discussed in this paper, the authors state that a user assents reliably and validly to the terms of a BWA, in case, the 4 elements are satisfied: (1) the user receives notice of the proposed terms (2) he can review the terms (3) he receives a notice that taking a particular action shows assent to the terms and (4) he takes the action mentioned in the notice.
Are browse-wrap agreements all they are wrapped up to be, Rambarran, I., & Hunt, R. (2007). Tul. J. Tech. & Intell. Prop., 9, 173. This article explains the Browse-Wrap Agreements (BWAs) and investigates how to create standard e-agreements. The authors elaborate on the notice requirements for online contracts and how to manifest the assent to online agreements. Then, they mention the mandatory and prohibitory terms, remedies and warranties. How to apply the BWAs to damages limitations in GTSL (Goods Transactions Substantive Law related to services as well as how to apply the BWAs to damages limitations in service transactions? What are the terms related to consumer information and its types, i.e. PII (Personally Identifiable Information) and NPII (Non-Personally Identifiable Information). Finally, the privacy policies of BWAs have been described.
Into Contract’s Undiscovered Country: A Defense of Browse-Wrap Licenses, Streeter, D. (2002). San Diego L. Rev., 39, 1363. In this research, the author provides details on the Browse-Wrap Contract (BWC) and the undiscovered countries into it. The author discusses the BWC’s licenses and writes in defence of these licenses.