Clickwraps, Browsewraps, and Other Contracts Executed without Ink

AuthorDavid W. Tollen
Clickwraps, Browsewraps,
and Other Contracts
Executed without Ink
This appendix covers contracts that aren’t signed in ink: usually non-
negotiable standard agreements prepared by the vendor of products
or services, or of a website. The main issue is enforceability. If you’re
the vendor, you’ve got to make sure your customer executes the con-
tract in a way that confirms both notice of the terms and consent.
Without notice and consent, you don’t have a contract, and a court
won’t enforce your terms.
We traditionally confirm notice and consent through an ink sig-
nature. Courts enforce signed contracts because we’re all expected to
know what a signature means. If you signed on the dotted line and
didn’t realize you’d consented to the terms above that line.. .well,
that’s your problem.
But an ink signature isn’t always practical for a form contract.
That’s where shrinkwrap contracts come in, along with their more
modern descendants: clickwraps and browsewraps.
A shrinkwrap contract is a printed form accompanying a product
container. It might be printed on the outside of a box of software, or it
might be a paper form held against the box by a plastic wrapper. The
name “shrinkwrap,” in fact, comes from the clear plastic shrink-to-fit
wrappers traditionally used with these contracts. A shrinkwrap gen-
erally begins with something like: “By opening this box, you agree to
the contract terms below.” The customer confirms notice of the terms
and consent by opening the box. If the customer reads the terms and

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