‘Click-to-agree’ terms and conditions are frequently encountered by technology users. This method enables a contract to be made quickly with a click of a button. But how effective are these mini-contracts? Do they carry the same weight and enforceability as a ‘real’ contract?
Firstly, not all ‘click-to-agree’ contracts are created equal.
The most commonly used form is called a “click-wrap” agreement. In these agreements the button “I agree” is located on the same page as the terms, and is clearly visible to the user.
A variation upon this is the “browse-wrap” agreement. In this style of agreement the terms and conditions aren’t on the same page and are accessible separately. Normally, this means that it is not necessary to view these conditions before proceeding.
Generally, a “click-wrap” contract is just as enforceable as a more conventional contract. This is dependent on the usual rules of contract law:
- That there be an offer to the consumer to supply a product on certain terms; and
- That the consumer accepts this by clicking the acceptance/agreement button
As no written signature is required a valid contract is created!
However, some issues with these contracts still remain. How clear the terms of the contract are and how easily accessible they are to the user may be influential (this is particularly the case with browse-wrap agreements). Additional concerns may be raised if the user is not made adequately aware of the contractual nature of the agreement.
To ensure that these types of contracts are enforceable, the following steps should be taken:
- Ensuring that the terms and conditions reside on the same page as the ‘I agree’ button
- Providing ample notice to the user that the agreement is contractual in nature
- Highlighting any onerous terms of conditions
*Here’s the asterisk: even if the contract is enforceable, it will always be subject to overriding consumer protection law such as the Competition and Consumer Act 2010