Clickwrap agreements, also known as click-through agreements, are commonly used in the digital age to establish enforceable contracts between parties. These agreements require individuals to click a checkbox or button indicating that they have read and agreed to the terms and conditions before proceeding with a transaction or accessing a website or app. But the question remains, are clickwrap agreements enforceable?
The answer is yes, clickwrap agreements are enforceable, but there are some essential considerations to keep in mind. Firstly, for a clickwrap agreement to be enforceable, the terms and conditions must be clearly visible and easily accessible to the user. The user must be given the opportunity to read and review the terms and conditions before agreeing to them. It is not sufficient to bury the agreement in a lengthy document or hide it behind a hyperlink.
Additionally, the language used in the clickwrap agreement must be clear and concise. The terms and conditions should be written in a way that is easy for the average user to understand. Legalese, or overly complicated legal jargon, should be avoided to ensure that users can fully comprehend the terms they are agreeing to.
Another important factor to consider is whether the clickwrap agreement has been properly executed. It is essential to ensure that the user has consented to the agreement voluntarily. Coercion, fraud or duress can invalidate a clickwrap agreement. It is also important to ensure that the person agreeing to the agreement has the authority to do so. For example, a minor may not have the legal capacity to enter into a contract.
It`s important to note that clickwrap agreements are not foolproof. Suppose a court determines that the agreement is unconscionable, meaning that the terms are grossly one-sided or unfair. In that case, the agreement may be deemed unenforceable. Similarly, if the terms of the agreement violate any applicable laws or public policies, the agreement may be unenforceable.
In conclusion, clickwrap agreements are enforceable as long as they meet specific requirements. The terms and conditions must be clearly visible and easily accessible, written in clear and concise language, executed without coercion, fraud, or duress, and meet applicable legal and public policy requirements. As digital transactions continue to become more prevalent, clickwrap agreements will continue to play a significant role in establishing enforceable contracts online.