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Browsewrap agreement
Practical Law ANZ Glossary w-013-6228 (Approx. 3 pages)
Glossary
Browsewrap agreement
An agreement on a website that binds the user (typically to the website's terms of use) by their conduct of browsing the website. For further information on website terms of use, see Standard document, Website terms of use.
The name browsewrap comes by analogy to shrinkwrap agreements that are formed when the user affirms their consent to a printed agreement on a product (typically software) by opening the clear, plastic, shrink-to-fit wrapper that seals the product.
For a browsewrap agreement to be enforceable, the website must give the user actual or constructive notice of the agreement and the user must consent to the agreement. Unlike a clickwrap agreement, a user does not need to take action to affirm their consent to be bound. Instead, the agreement typically states that use of the website is deemed acceptance of the agreement.
Courts are more likely to enforce clickwrap agreements than browsewrap agreements.
To increase the likelihood of enforceability of a browsewrap agreement, the website should:
- Provide conspicuous notice of the browsewrap agreement by prominently indicating where the website's terms of use are located. This can be achieved by:
- placing the link to the website's terms of use on the homepage so that it is visible "above the fold" (that is, the user should not have to scroll down the screen to see the link); and
- placing a link to the terms of use in the primary navigation bar of the site (that can be seen without scrolling) so that the link is both visible and accessible from all relevant pages of the site.
- Make clear that use of the website constitutes consent to the agreement by placing a prominent notice next to the link to the website's terms of use stating that the website is governed by those terms of use and that continued use of the website constitutes acceptance of those terms.
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