But are they enforceable? Unfortunately, the answer is: not always.
Types of online agreements
BY USING AND ACCESSING THIS WEBSITE, YOU ACKNOWLEDGE THAT THE SITE IS PROVIDED TO YOU SUBJECT TO THE TERMS OF THIS AGREEMENT AND YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Unfortunately, however, many browsewrap agreements may not be enforceable. Courts have found these types of agreements to be unenforceable when users do not have notice of the agreements or their particular terms.
Barnes & Noble case
The court held that since users do not affirmatively assent to browsewrap agreements, their enforceability depends on whether the user has actual or constructive notice of the agreements. Nguyen did not click on the terms-of-use hyperlink and never read the terms. So the question became, would “a reasonably prudent user” have notice of the terms?
The court further stated that the onus is on website owners to put users on notice of terms they want their customers/users to be bound by.
- Provide clear and conspicuous notice of the policies. Do not bury them in small print at the bottom of the page.
- Make users scroll through and affirmatively consent to the policies by adding their initials or clicking “I Agree” (i.e., make the agreements clickwrap rather than browsewrap).
- If you do not want to turn the agreement into a clickwrap agreement, be sure there is very clear notice that the use of the site is subject to the terms of the agreements.
- While you are at it, take time to review your policies to ensure they are up to date and adequately reflect your company’s practices. This is especially important if you are using or selling customer data.
- If in doubt, contact your legal counsel.
Melinda Giftos is an attorney with the law firm of Whyte Hirschboeck Dudek, S.C., practicing in the areas of intellectual property and technology law. She can be reached at 608-234-6076 or firstname.lastname@example.org.
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