77) In a clickwrap agreement
, the website user must affirmatively click on a box that he agrees to the terms, while in a browsewrap agreement, the terms are posted on the website and do not require affirmative assent from the user.
determin[ing] whether a clickwrap agreement
27) Enforcing a clickwrap agreement
would certainly be consistent with Judge Easterbrook's insistence in Gateway 2000 that parties can be bound by contractual language that they did not bother to read.
90) The clickwrap agreement
forces the user to scroll through the agreement, avoiding the problem of a notice issue that is presented in a browse wrap agreement.
To determine whether a clickwrap agreement
is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the plaintiffs had reasonable notice of and manifested assent to the clickwrap agreement
[nos italiques] (179).
A clickwrap agreement
is created when, in order to use a website, set up an account, or place an order, a user browsing a website clicks on an electronic button or pop-up screen on the website that states something such as "Yes" or "I accept," accepting the website's terms of service.
Miller points to three "seminal" cases in which federal preemptions have been used to nullify a condition set forth in a shrinkwrap or clickwrap agreement
, which furthermore "demonstrate apparent inconsistencies in the courts' preemption jurisprudence in relation to intellectual property law" (ibid): Vault Corp v Quaid Software Ltd, 847 F (2d) 255 (5th Cir 1988); ProCD, Inc v Zeidenberg, 86 F (3d) 1447 (7th Cir 1996); and Bowers v Baystate Technologies, Inc, 320 F (3d) 1317 (Fed Cir 2003).
2000) (declining to enforce clickwrap agreement
In the absence of fraud, the failure to read the terms of the clickwrap agreement
does not negate the enforceability of that agreement.
expounded on the fact that no true clickwrap agreement
128) In a similar decision, the Sixth Circuit ruled that a defendant had assented to jurisdiction through the acceptance of a clickwrap agreement
When dealing with clickwrap agreements
, the judiciary said that such forms of agreements are equivalent to any other contract, the only difference being the way the offer and the acceptance are presented.