Clickwrap Agreement Enforceability

Posted by Tom McKeever | May 24, 2023 | 0 Comments

A clickwrap agreement is an online contract formed when a user indicates acceptance of by clicking a button or checking a box on a website or software application. Clickwrap agreements are commonly used to govern the use of online services and apps.

Enforceability has varied in particular cases based on arcane nuances like the color or placement of text, but they are generally enforceable if the user has notice of the terms and the opportunity to review before taking an affirmative action to accept as follows:

  1. The user must be made aware of the terms before they are bound. This can be done many ways, such as by displaying a link to the terms on the website or app, or requiring the user to scroll through the terms before agreeing.
  2. Similarly, the user must be given the opportunity to read and understand the terms of the agreement before accepting.
  3. Finally, the user must affirmatively take action indicating acceptance of the terms, such as clicking a "I agree" button or checking a box indicating their agreement. Simply continuing to use the website or app after being presented with the terms may not be sufficient to show acceptance.

It is important to note enforceability may be affected by other principles, such as unconscionability (when the terms of the agreement are unduly oppressive or one-sided) or court identified nuances in the format of the affirmation process. 

Contact us for guidance in the nuances of formation of enforceable clickwrap and other electronic contracts for either new or existing clickwrap agreements.

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Tom McKeever

Leverage Tom's deep technology law experience and solid business judgment to your unfair advantage.


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