Click-wrap is the electronic equivalent of the shrink-wrap method which allows users to read the terms of the agreement before accepting them. This was presented in the ProCD v. Zeidenberg,3 shrinkwrap case. The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the end user to manifest his or her assent by clicking an "ok" or "agree" button on a dialog box or pop-up window. A user indicates rejection by clicking cancel or closing the window. Upon rejection, the user can no longer use or purchase the product or service. Classically, such a take-it-or-leave-it contract was described as a "contract of adhesion, which is a contract that lacks bargaining power, forcing one party to be favored over the other". The terms of service or license do not always appear on the same webpage or window, but they are always accessible before acceptance. If the terms of service are not visible, courts have found the notice requirement to be lacking. Caspi v. Microsoft, LLC4, held a forum selection clause in an online membership agreement was consented to when the user clicked the "I agree" symbol of the agreement in order to proceed with registration. It should be noted however that even though courts have ruled some clickwrap licenses to be enforceable contracts, it does not follow that every term of every clickwrap license is enforceable. Clickwrap licenses must still meet the criteria for enforceability of a unilateral form contract. An earlier case, Specht v. Netscape Communications Corp5., gave perhaps the clearest definition of a clickwrap license. A click-wrap license presents the user with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an icon. n12 The product cannot be obtained or used unless and until the icon is clicked. For example, when a user attempts to obtain Netscape's Communicator or Navigator, a web page appears containing the full text of the Communicator / Navigator license agreement. Plainly visible on the screen is the query, " Do you accept all the terms of the preceding license agreement? If so, click on the Yes button. If you select No, Setup will close."
2Source from; http://grove.ufl.edu/~techlaw/vol4/issue3/friedman.html
3ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996),
Below this text are three button or icons: one labelled "Back" and used to return to an earlier step of the download preparation; one labelled "No," which if clicked, terminates the download; and one labelled "Yes," which if clicked, allows the download to proceed. Unless the user clicks "Yes," indicating his or her assent to the license agreement, the user cannot obtain the software. It is increasingly common for websites to include “Terms of Use” agreements. These agreements set out the terms and conditions to which the user must agree in exchange for using the site. A question that sometimes arises in the law is: how does one demonstrate that a user assented to the Terms of Use agreement? With so-called “click-wrap” agreements, agreements that require the user to click an “I Agree” button or agree in some other direct way, the answer is simple enough: agreement is given directly by the user. But many other agreements are of the kind known as “browse-wrap” agreements, where there is no direct way of signaling assent, and any acceptance of the agreement, if it comes, must be contingent on the mere act of browsing the site. This essay will attempt to set out the relevant case law on the validity of browse-wrap agreements, and the likelihood that a Terms of Use agreement will be considered binding without the benefit of an “I Agree” button6.
The legal theory behind the enforceability of a Terms of Use agreement is that a contract can be formed if one of the parties posts a notice of terms and the other implicitly accepts the terms. Such contracts are common in everyday life. For example, it could be said that a driver agrees that a parking lot will not be responsible for lost or stolen items by parking in a lot that has a notice prominently displayed where a driver can see the notice before choosing to park in the lot. The key to enforceability is bringing the notice to the driver’s attention before the driver chooses to park.
In Thornton v. Shoe Lane Parking Ltd, 7 the English Court of Appeal held that merely using a parking garage did not constitute acceptance of the terms of use unless there was evidence that the user knew, or should
6http://www.zvulony.com/browse_wrap.html
7Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B.163 (C.A.),
have known, that the use was “subject to it [the conditions].” This case established the basic principle that there must be an offer and acceptance of the terms. The offer must be made known, and the act of using the product or facility must be in response to the offer, making it a form of acceptance.
Compare and Contrast:
The law recognizes two basic forms of online contracts that is Click wrap and browse wrap agreements. Click wrap agreements require the user to click on an icon appearing on the user’s computer screen to consent to certain terms before the web site performs its side of the contact, such as permitting the user entry or allowing the user to down load files from the Web8. Courts usually enforce click wrap agreement because they require the user to consent to the terms before forming the contract9. Browsewrap agreements allow the user to view the terms of the agreement, but do not require the user to take any affirmation action before the Web site performs its end of the contract. The foregoing review of case law regarding shrinkwrap, clickwrap and browsewrap licenses demonstrates that judicial unpredictability will reign until a more certain legislative framework can be developed for dealing with the many variations involving these agreements. While objectively assessing the relative equities of the parties is not a fool-proof predictor of judicial decision-making, parties in litigation regarding these agreements would be wise to consider the relative equities in their favor as closely as the legal precedents involved. Although the distinction between these forms (browse wrap, and click wrap) may not be particularly clear cut in practice10. There are three Important differences between click wrap and browse wrap agreements. First , in the case of click wrap agreements users constructive notice of the terms of the agreement because they are presented with all the terms of the agreements prior to entering into the agreement..
8 Specht v Netscpe Communication Corp. 150 F Supp.2d 585,503-4(S.D.N.Y 2001).
9 See Specht 150 F Supp.2d at 594.
10 Internet Law and Regulation - by Graham Smith, Published 2007,Sweet & Maxwell, Page 821.
However, with browsewrap agreements the terms are displayed to users only if they click on the hyperlink that brings up the “terms and condition” page. Second, in order to carry out their primary purpose11 users must acknowledge the presence of both the click wrap agreement and displayed terms by clicking on a button. With a browse wrap agreement, users can carry out the primary purpose without ever clicking on the hyperlink that links to the ‘term and conditions’ and without ever seeing the agreement or its terms. Finally with a browsewrap agreement user may not even realise that a contract is being formed. It is precisely because of these differences that courts have treated enforcement of these agreements differently12.
11 eg, downloading software or purchasing tickets online.
12 Commonwealth Caribbean Business Law By Rajendra Ramlogan, Natalie Renée Persadie, Natalie Persadie, Published 2004,Routledge Cavendish
BIBLIOGRAPHY:
BOOKS:
Internet Law and Regulation - by Graham Smith, Published 2007,Sweet & Maxwell, Page 821.
Commonwealth Caribbean Business Law By Rajendra Ramlogan, Natalie Renée Persadie, Natalie Persadie, Published 2004,Routledge Cavendish
CASES:
Specht v Netscpe Communication Corp. 150 F Supp.2d 585,503-4(S.D.N.Y 2001).
Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B.163 (C.A.),
ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996),
Caspi v. Microsoft, LLC, 323 N.J. Super. 118, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999)
WEBSITES:
http://www.zvulony.com/browse_wrap.html
Source from; http://grove.ufl.edu/~techlaw/vol4/issue3/friedman.html
1www.dti.gov.uk/bestpractice/assets/auctionshubs.pdf
1www.dti.gov.uk/bestpractice/assets/auctionshubs.pdf
4 Caspi v. Microsoft, LLC, 323 N.J. Super. 118, 732 A.2d 528 (N.J. Super. Ct. App. Div. 1999
5 Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001), aff'd, 306 F.3d 17 (2d. Cir. 2002),
