You walk into a fancy restaurant. A waiter hands you a menu, and at the bottom, there’s a tiny line that says, “By dining here, you agree to our terms and conditions.” You’re hungry, so you don’t bother reading it. Oops! You just stumbled into a browsewrap agreement.
On another day, you’re signing up for a new music streaming app. Before you can hit “play,” a pop-up appears with a lengthy user agreement. You have to click “I agree” to continue. This, my friend, is a clickwrap agreement.
So, what’s the difference, and why should you care?
Clickwrap Agreements: The Digital Pinky Promise
- Definition: A clickwrap agreement requires users to actively click a button or checkbox to show they agree to the terms. Think of it as a digital pinky promise.
- User Action: Users have to take a deliberate action (clicking) to agree.
- Enforceability: Generally more enforceable in court because there’s clear evidence the user agreed to the terms.
- Examples: Software installations, website sign-ups, online purchases.
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Browsewrap Agreements: The Sneaky Fine Print
- Definition: A browsewrap agreement assumes users agree to the terms simply by using the website or app. It’s like the fine print on the back of a concert ticket.
- User Action: Users don’t have to take any specific action; their continued use implies agreement.
- Enforceability: Less enforceable than clickwrap agreements because it’s harder to prove the user was aware of and agreed to the terms.
- Examples: Website T&Cs, privacy policies, and social media policies.
Which Agreement is Right for You?
As a small business owner, you want to protect yourself while also providing a seamless experience for your customers. So, which agreement is the best fit?
Clickwrap agreements are generally the safer choice. They offer greater protection for your business, and they’re less likely to cause confusion or frustration for your customers. But if you decide to use a browsewrap agreement, make sure the terms and conditions are prominently displayed and easy to find.
Disclaimer: This article is for informational purposes only and isn’t legal advice. Always consult with a lawyer if you have questions about contracts or legal agreements.
