Key Legal Issues for Online Retailers to Be Aware of

Courts have considered whether clickwraps and browsewraps create enforceable contracts. In general, clickwraps have been held to create enforceable contracts, unless the terms are unconscionable. Since browsewrap agreements don't require affirmative action by the website user to indicate assent, the validity of a browsewrap agreement depends on a factual analysis of whether the user has actual or constructive knowledge of the terms of the website. The cases indicate that the more conspicuous a website's terms, and the greater the confirmation that a user has consciously elected to accept the terms, the more likely the terms will be enforceable.