(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
If that is the route that Gateway takes, then Gateway can do a "clickwrap agreement
" online for any potential buyers of its computers.
(90) See Terenzi, supra note 15, at 1079 (stating that a user assents to a clickwrap agreement
by clicking the link that says "I agree").
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).
(25.) 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.
In a clickwrap agreement
, the seller's terms typically
(128) In a similar decision, the Sixth Circuit ruled that a defendant had assented to jurisdiction through the acceptance of a clickwrap agreement
. (129) In In re Realnetworks, Inc., a court dealing with an arbitration requirement that the contract at issue be written went even further and ruled that the clickthrough agreement involved was of an "easily printable and storable nature ...
are invoked through "I agree" click boxes and comparable mechanisms by users.