HOME

TheInfoList




A clickwrap or clickthrough
agreement Agreement may refer to: Agreements between people and organizations * Gentlemen's agreement, not enforceable by law * Trade agreement, between countries * Consensus, a decision-making process * Contract, enforceable in a court of law ** Meeting of ...

agreement
is a digital prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Privacy policies,
terms of service Terms of service (also known as terms of use and terms and conditions, commonly abbreviated as TOS or ToS, ToU or T&C) are the legal agreements between a service providerA service provider (SP) provides organizations with consulting, legal, real ...
and other user policies, as well as
copyright Copyright is a type of intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. ...

copyright
policies commonly employ the clickwrap prompt. Clickwraps are common in signup processes for
social media Social media are interactive technologies that facilitate the creation Creation may refer to: Religion * Creation ''ex nihilo'', the concept that matter was created by God out of nothing * Creation myth A creation myth (or cosmogonic myth) ...

social media
services like
Facebook Facebook is an American online social media and social networking service owned by Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin Moskovitz, an ...

Facebook
,
Twitter Twitter is an American microblogging Microblogging is an online Broadcasting, broadcast medium that exists as a specific form of blogging. A micro-blog differs from a traditional blog in that its content is typically smaller in both actu ...

Twitter
or
Tumblr Tumblr (stylized as tumblr and pronounced "tumbler") is an American microblogging Microblogging is an online Broadcasting, broadcast medium that exists as a specific form of blogging. A micro-blog differs from a traditional blog in that its con ...

Tumblr
, connections to wireless networks operated in corporate spaces, as part of the installation processes of many software packages, and in other circumstances where agreement is sought using digital media. The name "clickwrap" is derived from the use of " shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the
shrinkwrap Shrink wrap, also shrink film, is a material made up of polymer A polymer (; Greek '' poly-'', "many" + '' -mer'', "part") is a substance or material consisting of very large molecule File:Pentacene on Ni(111) STM.jpg, A scanning tunnel ...

shrinkwrap
, the user assents to the software terms enclosed within". The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the
end-user In product development, an end user (sometimes end-user) is a person who ultimately uses or is intended to ultimately use a product. The end user stands in contrast to users who support or maintain the product, such as sysop A sysop (; an abbre ...
to
manifest Manifest may refer to: Computing * Manifest file, a metadata file that enumerates files in a program or package * Manifest (CLI), a metadata text file for CLI assemblies Events * Manifest (convention), a defunct anime festival in Melbourne, Austr ...
their assent by clicking an "ok" or "agree"
button In modern clothing Clothing (also known as clothes, apparel, and attire) are items worn on the body. Typically, clothing is made of fabrics or textile A textile is a flexible material made by creating an interlocking bundle of ...
on a
dialog box The dialog box (also called dialogue box (non-U.S. English) or just dialog) is a graphical control element ., 300px, right Image:GUI Frame.svg, upExample of enabled and disabled widgets; the frame (GUI), frame at the bottom is disabled, the ...
or pop-up window. A user indicates rejection by clicking cancel or closing the window. If the user opts to reject the terms, they cannot use or purchase the product or
service Service may refer to: Activities :''(See the Religion section for religious activities)'' * Administrative service, a required part of the workload of university faculty * Civil service The civil service is a collective term for a sector of g ...
. Classically, such a take-it-or-leave-it contract is described as a "
contract of adhesion A standard form contract (sometimes referred to as a ''contract of adhesion,'' a ''leonine contract'', a ''take-it-or-leave-it contract'', or a ''boilerplate text, boilerplate contract'') is a contract between two parties, where the terms and cond ...
, which is a contract that lacks bargaining power, forcing one party to be favored over the other." The terms of service or license do not always appear on the same
webpage A web page (or webpage) is a hypertext Hypertext is text displayed on a or other with references () to other text that the reader can immediately access. Hypertext documents are interconnected by hyperlinks, which are typically acti ...

webpage
or window, but are always accessible before acceptance, such as through a
hyperlink In computing Computing is any goal-oriented activity requiring, benefiting from, or creating computing machinery. It includes the study and experimentation of algorithmic processes and development of both computer hardware , hardware and so ...

hyperlink
embedded in the product's webpage or a pop-up screen prior to installation. In order to be deemed to have accepted the terms of service, the purchaser must be put on notice that certain terms of service may apply. If the terms of service are not visible and/or accessible, courts have found the notice requirement to be lacking and as such, the purchaser may not be bound to the terms of the agreement. An analysis of the terms of service of major consumer websites has found that they frequently contain clauses that impede consumer rights in substantial and often unexpected ways.


Legal consequences


United States

Few cases have considered the validity of clickwrap licenses. Still, in the cases that have challenged their validity, the terms of the contract have usually been upheld: *''Feldman v. Google, Inc.'', 513 F.Supp.2d 229 (E.D.Pa. 2007) (upholding forum-selection clause) *''In re RealNetworks, Inc. Privacy Litigation'', No. No. 00-1366, 2000 WL 631341 (D. Ill. May 8, 2000) (upholding an arbitration clause) * ''Hotmail Corp. v. Van$ Money Pie'', No. 98-20064, 1998 WL 388389 (N.D. Cal. Apr. 16, 1998) (granting
preliminary injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction Jurisdiction (from Latin ''Wikt:ius#Latin, ...
for alleged breach of
contract A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Skagen', by Peder Severin Krøyer (1888) Demisted with DXO PhotoLab Clearview ...

contract
for violating the
terms of service Terms of service (also known as terms of use and terms and conditions, commonly abbreviated as TOS or ToS, ToU or T&C) are the legal agreements between a service providerA service provider (SP) provides organizations with consulting, legal, real ...
by using a
Hotmail Outlook.com is a personal information manager A personal information manager (often referred to as a PIM tool or, more simply, a PIM) is a type of application software that functions as a personal organizer. The acronym PIM is now, more commo ...
account to send
spam Spam may refer to: * Spam (food) Spam (stylized as SPAM) is a brand of canning, canned cooked pork made by Hormel Foods Corporation. It was introduced by Hormel in 1937 and gained popularity worldwide after its use during World War II. By 200 ...
or
pornography Pornography (often shortened to porn) is the portrayal of Human sexual activity, sexual subject matter for the exclusive purpose of sexual arousal.
). The court said that clicking the clickwrap button after notice gave consent. * ''I. Lan Sys., Inc. v. Netscout Serv. Level Corp.'', 183 F. Supp. 2d 328, 336 (D. Mass. 2002) (upholding a clickwrap agreement on two grounds: first, clickwrap is simply "Money now, terms later" contract formation; second, the court found that the "additional terms" of the clickwrap license was not material under
UCC
UCC
(§207(2)(b)). *''Caspi v. Microsoft, LLC'', held a forum selection clause in an online membership agreement was consented to when the user clicked the "I agree" symbol of the agreement in order to proceed with registration. *In ''A.V., et al. v iParadigms, LLC'', Judge Claude M. Hilton granted summary judgment on the students' complaint in favor of iParadigms/ Turnitin, because they had accepted the click-wrap agreement on the Turnitin website. Even though courts have ruled some clickwrap licenses to be enforceable contracts, it does not follow that every term of every clickwrap license is enforceable. Clickwrap licenses must still meet the criteria for enforceability of a unilateral form contract. For example, see '' Bragg v. Linden Research, Inc.'', 487 F.Supp.2d 593 (E.D. Pa. 2007), in which the judge found certain aspects of the ''
Second Life ''Second Life'' is an on-line multimedia platform that allows people to create an avatar (computing), avatar for themselves and have a second life in an online virtual world. Developed and owned by the San Francisco-based firm Linden Lab an ...

Second Life
'' clickwrap agreement "unconscionable, and therefore unenforceable


Cases in detail

In '' Register.com, Inc. v. Verio, Inc.'', 356 F.3d 393 ( 2d. Cir. 2004), the court described a clickwrap license, even though the license in question was distinguished from a clickwrap license
Essentially, under a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.
An earlier case, ''
Specht v. Netscape Communications Corp. ''Specht v. Netscape'', 306 F.3d 17 ( 2d Cir. 2002), is a case in the United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United Stat ...
'', 150 F.Supp.2d 585 ( S.D.N.Y. 2001), ''aff'd'', 306 F.3d 17 ( 2d. Cir. 2002), gave perhaps the clearest definition of a clickwrap license.
A click-wrap license presents the user with a message on his or her
computer screen A computer monitor is an output device that displays information in pictorial or text form. A monitor usually comprises a visual display, some circuitry, a casing, and a power supply #REDIRECT Power supply#REDIRECT Power supply A power suppl ...
, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an
icon An icon (from the Greek#REDIRECT Greek Greek may refer to: Greece Anything of, from, or related to Greece Greece ( el, Ελλάδα, , ), officially the Hellenic Republic, is a country located in Southeast Europe. Its population is appr ...
. n12 The product cannot be obtained or used unless and until the icon is clicked. For example, when a user attempts to obtain
Netscape Netscape Communications Corporation (originally Mosaic Communications Corporation) was an American independent computer services company with headquarters in Mountain View, California Mountain View is a city in Santa Clara County, Californi ...

Netscape
's Communicator or Navigator, a web page appears containing the full text of the Communicator / Navigator license agreement. Plainly visible on the screen is the query, "Do you accept all the terms of the preceding license agreement? If so, click on the Yes button. If you select No, Setup will close." Below this text are three button or icons: one labeled "Back" and used to return to an earlier step of the
download In computer network A computer network is a set of computer A computer is a machine that can be programmed to Execution (computing), carry out sequences of arithmetic or logical operations automatically. Modern computers can perfor ...

download
preparation; one labeled "No," which if clicked, terminates the download; and one labeled "Yes," which if clicked, allows the download to proceed. Unless the user clicks "Yes," indicating his or her assent to the license agreement, the user cannot obtain the
software Software is a collection of instructions Instruction or instructions may refer to: Computing * Instruction, one operation of a processor within a computer architecture instruction set * Computer program, a collection of instructions Music * I ...

software
.
The clickwrap method was presented to the court in '' ProCD v. Zeidenberg'', 86 F.3d 1447 (7th Cir. 1996), where Zeidenberg purchased a CD-ROM, created by ProCD, which contained a compilation of a telephone directory database. Upon purchase of this CD-ROM, Zeidenberg installed the software onto his computer then created a website which offered to visitors the information contained on the CD-ROM at a price less than what ProCD charged for the software. Prior to his purchase of the software, Zeidenberg may not have been aware of any prohibited use or dissemination of the product without consent by ProCD. However, upon preparing to install the software onto his computer, the software license appeared on his computer screen and would not allow him to continue with the installation without indicating acceptance by clicking his assent in a dialog box. The court held that Zeidenberg did accept the offer and the terms contained within the license by clicking through the dialog box. Zeidenberg had the opportunity to read the terms of the license prior to clicking the acceptance box. The court further stated that Zeidenberg could have rejected the terms of the contract and returned the software. (''Id.''). More recently, in the 2017 opinio
Meyer v. Uber Technologies
the Second Circuit of the United States Court of Appeal held that users were on fair notice of the arbitration provision in
Uber's
Uber's
registration process, because Uber presented the app’s terms of service via hyperlink. “While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes,” Judge Chin wrote. “The user is still on inquiry notice." The Court further held that “ en considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone..." Instead, the Court explained that “ reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.”


European Union

On 21 May 2015, the
European Court of Justice European, or Europeans, may refer to: In general * ''European'', an adjective referring to something of, from, or related to Europe ** Ethnic groups in Europe ** Demographics of Europe ** European cuisine, the cuisines of Europe and other Western ...

European Court of Justice
decided in the case of El Majdoub v. CarsOnTheWeb.Deutschland GmbH (case n° C-322/14), on a referral from a German court, that click-wrap agreements are acceptable under certain circumstances as a "durable record" of the acceptance of general conditions within the meaning of Regulation 44/2001 (now replaced by Regulation 1215/2012, also known as the 'Brussels I Recast Regulation').El Majdoub v CarsOnTheWeb.Deutschland GmbH: ECJ 21 May 2015
accessed 1 May 2021


See also

* Browse wrap *
Electronic signature An electronic signature, or e-signature, is data Data (; ) are individual facts A fact is something that is truth, true. The usual test for a statement of fact is verifiability—that is whether it can be demonstrated to correspond to e ...
*
Electronic Signatures in Global and National Commerce Act The Electronic Signatures in Global and National Commerce Act (ESIGN, , ) is a United States federal law The law of the United States comprises many levels of codified and uncodified forms of law Law is a system A system is a grou ...
(ESIGN) * Rudder v. Microsoft Corp. *
Shrink wrap contract Shrink wrap contracts are boilerplate contract A standard form contract (sometimes referred to as a ''contract of adhesion,'' a ''leonine contract'', a ''take-it-or-leave-it contract'', or a ''boilerplate text, boilerplate contract'') is a contr ...
*
SoftMan Products Co. v. Adobe Systems Inc.{{Infobox court case , name = SoftMan Products Co. v. Adobe Systems , court = United States District Court for the Central District of California , image = , imagesize = 95 , date decided = October 19, 2001 , full name = SoftMan Products Compan ...
*
Software license A software license is a legal instrument (usually by way of contract law A contract is a legally binding agreement that defines and governs the rights and duties between or among its parties Image:'Hip, Hip, Hurrah! Artist Festival at Sk ...


References

{{reflist


External links

;Examples of Clickwrap contracts
Online electronic signatures using clickwrapT-Mobile uses clickwrap for online phone purchases
Terms of service Computer law Software licenses