As companies increasingly rely on the Internet to reach new customers and clients, online agreements are becoming commonplace. These agreements can cover critical terms between a company and its clients and customers, whether “terms of service”, “privacy policies”, “terms of sale” or otherwise. Companies utilizing online agreements should be familiar with standard contract principles and avoid missteps that could render their agreements unenforceable.
“Clickwrap” and “Browsewrap”
Courts will categorize most online agreements as either “clickwrap” or “browsewrap” agreements. Clickwrap agreements require the user’s affirmative acknowledgment and agreement to terms before the user is allowed to continue to use the company’s websites or services. Browsewrap agreements are often found on a separate web page and do not require a user to seek out this page to utilize the company’s websites or services.
Clickwrap agreements will require a user to consent before continuing to use a company’s site or services (for example, a “pop up” on the screen requiring a user to click “I agree”). Courts routinely uphold the terms of clickwrap agreements – by requiring a physical manifestation of assent of the user, a user is on notice of the terms of such agreement.
Modifying Existing Online Agreements
When drafting online agreements, it is best to avoid using language that implies that one party can make unilateral modifications to that agreement. Companies should provide a procedure within the online agreement for modifications and follow the outlined procedure. After making changes to an online policy or agreement, a company should consider utilizing a “pop-up” to notify users of changes to the policy and require affirmative acceptance to proceed.
The information in this article is for informational purposes only and does not constitute formal, legal advice. If you have questions about your online agreements, consult with one of the attorneys from Roberts McGivney Zagotta LLC for advice.
 See Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014). See also Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012); Berkson v. Gogo LLC, 97 F. Supp. 3d 359 (E.D.N.Y. 2015)
 See Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014).
 Id. at 1178; See also AvePoint, Inc. v. Power Tools, Inc., 981 F.Supp.2d 496, 510 (W.D. Va. 2013)
 See Douglas v. U.S. District Court, 495 F.3d 1062 (9th Cir. 2007); Rodman v. Safeway, Inc., 2015 U.S. Dist. LEXIS 17523 (N.D. Cal. 2015)
 See Harris v. Blockbuster, Inc., 622 F.Supp.2d 396 (N.D. Tex. 2009)
 See TradeComet, LLC v. Google, Inc., 693 F. Supp.2d 370 (S.D.N.Y. 2010), aff’d, 435 Fed. App’x 31 (2d Cir. 2011)