A common and effective method used by many traders is known as a click-wrap contract or, an end user licence agreement in the context of software licence agreements. A click-wrap contract is achieved by designing the website so that the customer is unable to complete their order until, they have scrolled down the full terms and conditions on the screen and then clicked an ‘I accept button’. Most people will have experienced this whilst shopping online.
Is click-wrap legally enforceable?
According to the Law Commissions, courts would often find that there was a contract when using click wrap. The trader has offered the terms, the consumer has agreed by clicking the button and both sides have made a deal. The trader gives something (the licence) in return for consideration from the consumer, which could just be agreeing to act in a specific manner. An important point is that the end-user accepts the terms at the same time as forming the contract, instead of after. Unfortunately, there is currently no English judicial guidance to confirm the Law Commissions analysis. However, a Scottish case involving the terms of a business to business contract concluded that, as the ‘terms were a click away from perusal’ it was impossible for the buyer not to have realised that they were to form part of the contract. (Note: Scotland is separate legal jurisdiction from England and Wales)
To make on online contract legally enforceable there must be an offer, acceptance, an intention to form legal relations, and certainty of terms. Offer, acceptance and incorporation of terms are of particular importance when forming a contract online. It is vital that a website operator clearly sets out in their terms and conditions what actions signify both offer and acceptance.