Browsewrap Contracts Richard Warner

Web sites typically contain an agreement defining the terms on which the web site may be used. In many cases, no affirmative act of assent is requested or required with respect to these agreements. Terms Of Use Contracts

You walk into a restaurant and order dinner. When the bill is presented it includes a service charge of 50%. When you ask what is going on, the waiter produces a contract which says in part, “All guests agree to pay a service charge of 50%.” The contract was posted in the kitchen. First Restaurant Analogy

You are not obligated to pay the charge. Why? No offer and acceptance. A communication is an offer if it is a (1) manifestation of willingness to enter into a bargain (2) so made as to justify the recipient of the communication in understanding that his or her assent will conclude the bargain. There is no manifestation of a willingness to enter into a bargain No Offer And Acceptance

The contract is posted on the door of the restaurant. But the contract is very small and easy to overlook. There may been a offer by the restaurant. But you did not accept. You were unaware, and could not reasonably be expected to be aware, of the offer. Second Restaurant Analogy

Specht v. Netscape The issue is the enforceability of an arbitration clause in the license agreement governing the use of Netscape’s SmartDownload program.  The program that allows “users to download files from the Internet without losing their interim progress when they pause to engage in some other task, or if their Internet connection is severed.” The question is whether those who download the software ever really agree to the terms of the license.

Relevant Facts “By clicking on the box, a visitor initiates the download. The sole reference on this page to the License Agreement appears in text that is visible only if a visitor scrolls down through the page to the next screen [emphasis added]. “If a visitor does so, he or she sees: “Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software.” “Visitors are not required affirmatively to indicate their assent to the License Agreement, or even to view the license agreement, before proceeding with a download of the software.”

The Court’s Conclusion “[T]he individual obtaining SmartDownload is not made aware that he is entering into a contract.”  The court views the situation like the second restaurant analogy.  The court offers its own analogy: “From the user’s vantage point, SmartDownload could be analogized to a free neighborhood newspaper, readily obtained from a sidewalk box or supermarket counter without any exchange with a seller or vender. It is there for the taking.”

Evolving Custom And Practice Experienced web users know that web sites often contain terms of use contracts behind hyperlinks located at the bottom of the home page or some other relevant page. An established custom and practice about the existence and placement of these hyperlinks will make it more and more difficult for web site visitors to argue that they were unaware that they were being invited to enter into a contractual relationship.