What is required for a valid browsewrap agreement?
A valid browsewrap agreement requires that the agreement be available on the website, via a hyperlink, and can be clicked on for the visitor to read. However, this is generally harder for an individual to enforce, as there’s no “affirmative statement” like in clickwrap agreements. Instead, the affirmative statement is determined by the continued use of the website as specified in the terms. Yet, the way that this is compensated for is to demonstrate that the individual is aware that the agreement exists, and generally aware of its terms. In essence, if an agreement is present, and the visitor is aware that there are terms, the browsewrap agreement is more likely to be held as valid.
How can you ensure that a browsewrap agreement is valid?
In Nguyen v. Barnes & Nobel, Inc. out of the Ninth Circuit, the court found that the browsewrap agreement on Barnes & Nobel’s website was invalid. This was because while there was evidence that the terms were present on the website, there was insufficient evidence to construct that Nguyen knew, or should have known about the terms. The terms were close to the buttons to make a purchase, and Barnes & Nobel argued that, as such, Nguyen should have known.
If you have questions about your browsewrap agreements, you may contact us to set up an initial consultation. At our law firm, we assist clients with legal issues related to business, technology, and e-commerce transactions.