Click-Wrap Agreement

A click-wrap (or "click-through") agreement is an online contract formation method in which the user manifests assent to a set of contractual terms by taking an affirmative action, typically clicking an "I agree" button or checking a box, after being presented with the terms. Click-wrap is the most reliably enforceable of the three principal online contract types in Texas: click-wrap, browsewrap, and sign-in-wrap.

Click-wrap vs. browsewrap vs. sign-in-wrap

Click-wrap requires an affirmative user action (clicking "I agree") in response to displayed terms. Browsewrap purports to bind the user merely by browsing the site, with terms accessible by hyperlink. Sign-in-wrap occupies a middle ground: the user clicks a sign-in or registration button while terms are referenced near the button. Browsewrap binds a user only if the user had actual or reasonably conspicuous notice of the terms. Sign-in-wrap is fact-intensive and depends on the conspicuousness of the notice and the physical proximity of the terms to the assent action.

Texas enforceability requirements

Courts applying Texas law use general contract-formation principles, and UETA confirms that a contract may not be denied effect solely because an electronic record was used to form it. Courts generally ask whether the user had (1) reasonable notice of the existence of the terms; (2) an opportunity to review the terms; and (3) manifested unambiguous assent. On notice, courts look at whether the terms or a link to them were conspicuous and near the assent button, and whether the user was told that clicking signified agreement.

Common drafting failures

Terms hidden in footers, presented only after assent, displayed in low-contrast colors, or accessible only via a non-conspicuous hyperlink reduce enforceability. Later changes to the terms raise their own notice-and-assent questions. If the terms fail the reasonable-notice test, the arbitration clause, class-action waiver and forum selection clause fall with the rest of them.