The Tech Contracts Handbook warns website operators not to rely on browsewraps: contracts posted online without a click-to-agree requirement. In fact, the book warns against any contract executed or even amended without without clear consent from the customer, like an “I agree” click. (See TCH 2nd Ed. Ch. III.S and Append. 3.) Without that sort of consent, the contract probably won’t be enforceable. However, The Handbook recognizes that click-to-agree contracts — clickwraps — aren’t always possible. It suggests that website operators using browsewraps at least increase their chances through some sort of bold notice. Last month, a federal court in California affirmed that idea. It enforced a browsewrap thanks to evidence that a customer actually knew about the contract.
In Gutierrez v. FriendFinder (ND Cal. 2019), the vendor’s customer support representative spoke with the customer by phone and said use of the vendor’s website required compliance with its terms. The customer said, “Yeah I know” — and then continued using the site. And conveniently, the vendor recorded the call. So the U.S. District Court for the Northern District of California enforced the contract. The court held that the customer had “inquiry notice,” thanks to the phone call:
[T]he Terms were readily available to [Customer] on the website, such that his failure to read them, despite knowing he was bound by them, cannot absolve him of his need to comply with them. … Because the Terms clearly stated that continued use of the site would constitute acceptance of the Terms, [Customer’s] continued use of the site after being put on notice of the Terms and his need to comply with them constituted acceptance of the Terms.
The outcome isn’t surprising, but it’s worth some thought. A browsewrap isn’t necessarily unenforceable. Nor is any other online contract executed without a click, or any amendment. If the customer knew or should have known a contract governed the site or service, that contract should be binding.
How do you establish that the customer knew or should have known? The Gutierrez case suggests one way: have phone support staff tell customers an online contract governs the site or service — at least, whenever they get a chance to talk. Make that standard practice for every call, and record the conversations if possible. The Tech Contracts Handbook suggests another way: add big all-caps notices to the website. (But as the book asks, once you’ve gone that far, why not use clickwrap?) And you might find other viable mechanisms.
I don’t actually recommend any of this. My recommendation remains the same as in The Tech Contracts Handbook: use a clickwrap. Require an “I agree” click for any contract or amendment before providing the product or service. That said, it’s good to know that if you you can’t use a clickwrap for some reason, another option may be better than nothing.
David Tollen is the author of The Tech Contracts Handbook, the American Bar Association’s bestselling manual on IT agreements. He is an attorney, expert witness, and the founder of Sycamore Legal, P.C., a boutique IT, IP, and privacy law firm in San Francisco. His practice focuses on software licenses, cloud computing agreements, and other IT transactions. David also serves as a lecturer at U.C. Berkeley Law School. Finally, he is the founder of Tech Contracts Academy and our primary trainer.
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