Online Promotions and Marketing

'I Accept'
Has a Contract Been Formed?

Because many types of online promotion call for the user to agree to grants of rights and terms and conditions, a process will need to be set up to provide for the user to do so. This should be done in a manner that constitutes agreement to a contract. Since there is no signed writing in an online agreement, online contracting typically falls into so-called 'browse wrap' and 'click wrap' agreements. Some courts have held that if the contractual terms are clearly and conspicuously available, and notice is given that they are mandatory for use, that the subsequent use of the product or service constitutes acceptance ' the so-called 'browse wrap agreement.' See, e.g., Hubbert v. Dell, 359 Ill. App. 3d 976 (2005) (terms and conditions of online sale accessible by conspicuous hyperlink on five pages of the site during purchase process was sufficient to manifest assent); cf. Bischoff v. DirectTV, Inc., 180 F.Supp.2d 1097, 1104 (C.D. Cal. 2002) (finding user accepted terms and conditions sent to user after service was ordered where terms and conditions stated that service would be cancelled if user did not agree thereto and that use was subject to acceptance). However, not all courts have agreed since there is no express action that confirms the user's actual intention to enter into an agreement. See, e.g., Specht v. Netscape Comm-unications Corp., 306 F.3d 17 (Second Cir. 2002) (inadequate notice that posted terms applied upon download and use). At minimum, if a browse wrap agreement must be relied upon because the user is merely browsing and not interacting with a Web site, the more that is done to give users notice that the terms and conditions are mandatory, the better the chance courts will enforce the browse wrap agreement. For example, a Web site might include the following notice, with a hyperlink to the applicable agreements and policies, prominently on the Web site's home page and on the bottom of each subsequent page: 'Your use is deemed acceptance of the Terms of Use {click to link} and Privacy Policy {click to link}. Discontinue use if you do not agree.' If there is any user interactivity involved, it is recommended that such opportunity be taken to obtain an affirmative acceptance, particularly if the user is permitted to post or upload content (e.g., blog entry, UGC, registration, data collection, etc.) or otherwise communicate or interact via the Web site.