Product Update

Enforceability of Browse-Wrap Agreements and Hybrid Browse-Wrap Agreements in Contractual Risk Transfer

Browse-wrap agreements and hybrid browse-wrap agreements are two forms of contracts that businesses and individuals enter into online. A browse-wrap agreement lists the "Terms and Conditions," "Terms of Use," "Terms of Service," or license agreement that governs the use of a website and contains a hyperlink to a separate Web page that lists the terms to which a user has agreed. However, the user does not have to click on the link or review the agreement's terms in order to continue using the website. A hybrid browse-wrap agreement has one key difference from a standard browse-wrap agreement. Although the terms of the hybrid browse-wrap agreement are only visible via a hyperlink and the user is not required to view the terms, the user must take an action such as click on an "I Agree," "Yes," "I Approve," or "I Consent" button in order to manifest assent. Judicial interpretation of browse-wrap agreements and hybrid browse-wrap agreements has been ongoing, and many courts are willing to enforce both types of agreements, provided certain requirements are met. This Contractual Risk Transfer release adds 2019 case law discussing the enforceability of browse-wrap agreements and hybrid browse-wrap agreements.