In this article, I will break down the meaning of a Browsewrap Agreement so you know all there is to know about it!
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Let me explain to you what is a browsewrap agreement once and for all!
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What Is A Browsewrap Agreement
Typically, the browsewrap agreement appears via a hyperlink in an easily accessible area of the website, such as the footer or sidebar.
The term “browsewrap” comes by analogy to shrinkwrap agreements where users were found to have accepted the terms of a software solution by opening the shirk-to-fit plastic wrapper on the product packaging.
Many websites will include a browsewrap agreement on their website in an attempt to control and manage how users interact with their site.
What characterizes a browsewrap agreement is that the user does not have to manifest his or her acceptance of the agreement by clicking somewhere or taking an action of some kind.
This type of agreement is very common and practically on all commercial websites.
Keep reading as I will further break down the meaning of a browsewrap agreement and tell you how it works.
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How Do Browsewrap Agreements Work
Browsewrap agreements are contracts or license agreements governing the use of a website, software product, digital document, or application.
The way it works is that a party will define the terms and conditions that it wishes to impose on users of its website or software application and will post these terms on its website.
The content of the browsewrap agreement is available via hyperlink on the website, very often in the footer area.
When a person accesses the website, downloads the software product, or uses the application or document, he or she is deemed to have accepted the terms of the browsewrap agreement.
Unlike clickwrap agreements, users are not required to express their acceptance of the terms and conditions of the agreement by clicking on a button or expressing consent to it.
The mere use of the website or application is considered as acceptance of the browsewrap terms.
Elements of A Valid Contract
In contract law, a legally binding contract is considered formed when a party makes an offer and the recipient of the offer accepts the same.
This is the notion of offer and acceptance.
In Quebec, just like many other jurisdictions, the elements of a valid contract are:
- Capacity to contract
- Legality object
- Valid cause
For a browsewrap agreement to be legally binding, all the elements required for a contract to be properly formed must be present.
A party invoking a browsewrap agreement may have difficulty proving that the site user has “accepted” the terms of the agreement.
A user may also not have the legal capacity to contract resulting in an unenforceable contract.
It’s worth noting that since the terms of the browsewrap are generally unilaterally defined and users do not have the ability to freely negotiate its terms, courts can qualify the agreement as a contract of adhesion.
A plaintiff will have additional legal arguments to invalidate abusive clauses if the contract is deemed a contract of adhesion.
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Browsewrap Agreement Enforceability
The question of enforceability is highly relevant when dealing with browsewrap agreements.
Will the Canadian courts enforce the terms and conditions of a browsewrap agreement against a website user?
In contract law, a contract is legally formed when you have a party making an offer and another party accepting the offer.
In Century 21 Canada Limited Partnership v Rogers Communications Inc., the court indicated that if the user is given sufficient notice, using the website can be considered acceptance.
To ensure that your browsewrap agreement is enforceable, you must have your terms and conditions presented in a location easy to find and you should give proper notice to your users.
Otherwise, it may still be possible to argue that a contract was formed with a user but the enforceability can be subject to challenge.
Another important aspect to consider is the application of consumer protection laws on your browsewrap agreement.
For instance, in the province of Quebec, certain provisions will require the inclusion of a disclaimer informing users that such provision does not apply in Quebec (such as the limitation of liability).
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Browsewrap Agreement vs Clickwrap Agreement
What is the difference between a browsewrap agreement and clickwrap agreement?
Both browsewrap and clickwrap agreements are different types of online contracts used in a variety of situations.
Software providers and websites use either a browsewrap or clickwrap in an attempt to legally bind their users to certain terms and conditions.
A browsewrap is a type of agreement that is presented to the user via hyperlink and is generally available at the bottom of websites.
On the other hand, clickwrap is a type of agreement that appears before the user and requires the user to take an action.
In essence, browsewrap does not require the user any specific action to accept the terms whereas clickwrap requires an action.
From an enforcement perspective, clickwraps are certainly the better option.
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So there you have it folks!
What does browsewrap agreement mean?
In a nutshell, a browsewrap agreement is a term used to refer to the agreement found on websites where the user is deemed to have accepted its terms by virtue of using the site.
This type of agreement does not require the user to actively give consent.
Rather, the user’s state of use of the site is deemed to represent the user’s acceptance of the browsewrap agreement.
Understanding the pros and cons of browsewrap agreements are important for software developers, website users, and businesses having online operations.
If you are operating a business online, operating a website, developing software or applications, or have a particular need for a browsewrap, be sure to consult with a qualified technology attorney on this matter.
AK-Law is a boutique law firm having a core focus on all facets of the business. We support businesses of all sizes in their day-to-day as well as strategic legal needs. If you want to know more about our firm, better understand what we do, or get a quote, be sure to reach out!
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