Click, Scroll, Agree? Enforcing Online Contracts in Texas

Paper, wet ink, signing in person. These notions are antiquated. If you have a cell phone, streaming service, or have ever purchased a product online, you have signed an agreement digitally and bound yourself to the terms of that agreement without lifting a pen or stepping foot in an office. This modern form of entering into contractual agreements online has taken a few different forms, the “clickwrap agreement,” the “browsewrap agreement,” and the “sign-in wrap agreement” and it has become an integral part of our online interactions. In the state of Texas, as in many other jurisdictions, clickwrap agreements play a significant role in e-commerce and online services.

Clickwrap agreements are, in short, digital contracts where users must click a button or check a box to indicate their acceptance of the terms and conditions presented by a service provider. 

Browsewrap agreements are a more passive form of agreement. In a browsewrap agreement, users are not required to take any affirmative action to accept the terms. Instead, the terms and conditions are usually posted on the website or application and can be accessed through a hyperlink or similar means.

Sign-in-wraps are agreements that notify the user of the existence of the website’s terms of use and, instead of providing an ‘I agree’ button, advise the user that he or she is agreeing to the terms of service when registering or signing up.

These agreements contain important terms and conditions that govern the use of a website or application. They generally cover a wide range of topics, including privacy policies, terms of service, end-user license agreements (EULAs), and more.

There is consistency in many of these stipulations across all state lines but the following dives into the requirements of an online agreement to be enforceable in Texas. Whether or not the agreement has enforceability largely depends on whether certain legal criteria are met. There is not yet a specific blueprint to follow but, so long as the following are present, an online agreement will most likely be found enforceable:

Reasonably Conspicuous Notice: As with all things legal, there is some interpretation to be had here. Notice is pretty clear, you must make sure that the party agreeing to the terms has been made aware of the terms. Reasonably Conspicuous is open to interpretation. Courts have recently held that Users provided with access to the terms of the agreement at issue on an uncluttered screen with minimal fields for User engagement and language to the extent of “by creating an account on this site, you agree to the Terms of Service and Privacy Policy” with hyperlinks to all referenced documents received reasonably conspicuous notice of the terms of the agreement at issue. 

Unambiguous Affirmative Action: This standard is relatively easily met in the instance of a clickwrap agreement or sign-wrap agreement because the user has to actively take the steps of either clicking a box or filling out forms on the website or app. With the browsewrap agreement, this standard becomes more difficult. Often times, service providers who seek to enforce a browsewrap agreement will require users to actively scroll to the bottom of the terms at issue before the user is allowed to advance to the next screen or page. This type of forced activity could be considered the unambiguous affirmative action necessary to meet this standard. 

Unambiguous Language: The terms and conditions must be written in clear and understandable language, avoiding any ambiguity or confusion. The terms and conditions page should be clear of clutter and, ideally, contain a warning that the user is agreeing to the terms and conditions. Courts are more likely to enforce agreements with transparent language provided in a format that is a clear as possible. This stems from the reality that most people don’t have their attorney next to them when they are reviewing their Paramount+® terms and conditions and the courts want language reviewed without counsel to be as easy to understand as possible. 

Accessibility: Terms and restrictions that are hard to find will likely not be found enforceable. They should not be buried within long and convoluted documents, making it difficult for users to find and review them.

Opportunity to Review: Users must be given a reasonable opportunity to review the terms and conditions before accepting them. Rushing users through the acceptance process without providing adequate time to read the agreement can raise enforceability concerns.

Clickwrap/browsewrap/sign-in-wrap agreements are a ubiquitous part of the digital landscape, shaping how online interactions are legally bound. In Texas, as in other jurisdictions, the enforceability of these agreements depends on several factors, including notice, affirmative action, language clarity, accessibility, and the opportunity to review. 

Users and businesses alike should be aware of their rights and responsibilities when engaging in online transactions. Service providers should ensure that their clickwrap agreements comply with local law, while users should exercise caution and read these agreements to understand the terms to which they are agreeing. As technology continues to evolve, so too will the legal landscape surrounding digital contracts and agreements.

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