Clickwrap: Everything You Need to Know

Clickwrap is an online agreement between a user and a company that requires the user to click a box or a button before they download content, make a purchase, or use a website. The box or button confirms that the user agrees to an online contract with the company, and substitutes for the user's signature.

In a clickwrap agreement, in order to use a website or download content, the user has to check a box saying they've read and agree to the terms and conditions that apply to the website or software. Sometimes the agreements are many pages long and difficult to read. They usually contain two things:

Clickwrap agreements are also called:

Types of clickwrap (and browsewrap) include:

Buttons that signify clickwrap agreements include:

You can cancel a clickwrap agreement by clicking "cancel" or closing the window instead of accepting.

You usually see clickwrap agreements when you want to:

The clickwrap agreement is a substitute for a wet signature.

A shrinkwrap license is where the idea of a clickwrap agreement came from. Shrinkwrap license is a software industry term that means if you open the packaging on software, then you agree to the software company's terms and conditions.

Sample Forms

Clickwrap vs. Browsewrap

Browsewrap and clickwrap are both digital contracts inspired by the shrinkwrap license. Browsewrap links to the legal agreement on:

You can find browsewrap in the bottom menu of a web page, usually listed as Privacy Policy or Terms of Service. Browsewrap usually:

The Zappos.com case, decided in the Nevada District court, distinguished between browsewrap and clickwrap.

Clickwrap increases the chance that your users see and agree to the contract.

A clickwrap and browsewrap hybrid is a popular choice for sites like Facebook and eBay. You have to click a pop-up window to log in to their websites. The window doesn't contain the agreement text (like true clickwrap does), but instead has hyperlinks to the agreements.

Why Is a Clickwrap Agreement Important?

Clickwrap agreements add convenience for companies in lots of ways:

With clickwrap agreements companies can:

Legal Terms

Clickwrap agreements usually contain:

ADP v. Lynch

Clickwrap agreements don't have to happen between companies and third parties. Some clickwrap agreements happen between employers and employees.

Why Use a Clickwrap Agreement?

The law doesn't specify if you should use clickwrap or browsewrap. Lots of businesses prefer clickwrap, however, because of the legal terms around contracts.

To make a contract enforceable:

Notice

The parties agreeing to the contract need to know if the policy changes. You at least need to give users the opportunity to look at any contract changes, so it's on them if they choose not to look.

Consent

Sometimes people call consent meeting of the minds. Consent can either be:

Express consent is much easier to prove in court, and express consent is what you're getting when you use clickwrap over browsewrap.

Fair

The idea of fairness means:

Clickwrap Best Practices

Make sure your clickwrap is enforceable under U.S. law by:

If you'd rather use browsewrap:

Clickwrap Enforced

The law requires companies to have privacy policies, but not terms and conditions or other contracts. Most countries' privacy policy laws say the policies have to be easy to get to.

Privacy Policy law examples:

Clickwrap is a contract that both sides have to comply with by law. How you write your clickwrap agreement is important in case a user has a problem later.

SaaS (Software as a Service) apps need privacy policies or terms and conditions because:

Companies, universities, and other entities have to create standards around accepting clickwrap agreements when they want to use software and websites. North Carolina State University has a clickwrap policy that serves as an example.

Clickwrap and Copyright Transfer

Section 204(a) of copyright law says you can't transfer copyright unless the copyright's owner signs a written document that hands over the rights to another party. Clickwrap can transfer copyright from one person to another, thanks in part to the E-Sign Act.

The writing requirement of Section 204(a):

What kind of copyrights transfer:

An email exchange with no signatures does not satisfy Section 204(a). The E-Sign Act is the key in this equation. It states:

Metropolitan Regional Information Systems v. American Home Realty Network

The MRIS v. AHRN case dealt with this exact issue when MRIS argued it had copyright of photos AHRN uploaded to its site.

A Craigslist case from 2012 argued the same thing: that Craigslist owned the copyright to user material because the users accepted clickwrap. The court focused more on the written agreement than the signatures in this case. The court ruled in favor of Craigslist.

Some people might questions whether clicking a box constitutes signing a written agreement to give up copyright. These cases, however, set the precedent that it does.

Lawsuits Upholding Clickwrap and Browsewrap

These lawsuits uphold clickwrap and browsewrap practices, as long as it's clear the user is agreeing to contract terms when they click.

Swift v. Zynga Game Network

DeJohn v. The .TV Corp

Motise v. America Online

Hubbert v. Dell

Cairo v. CrossMedia Services

Zaltz v. Jdate

I.Lan Systems v. Netscout Service Level

Scherillo v. Dun & Bradstreet

Capsi v. Microsoft

Century 21 v. Rogers Communications

Lawsuits Ruling Against Clickwrap and Browsewrap

You can see in cases where the court rules against clickwrap or browsewrap that the language notifying people they're agreeing to a contract is the important factor.

Ticketmaster v. Tickets.com

Comb v. PayPal

Schnabel v. Trilegiant

Sgouros v. TransUnion

Savetsky v. Pre-Paid Legal Services

Knutson v. Sirius XM

Seek Legal Counsel

Your clickwrap agreement is an important part of your website or software. Find an experienced cyber contract lawyer in your area to answer questions or help draft your online contract. Post your legal need here to get free custom quotes from legal professionals to provide you with an experienced and qualified attorney. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.