In the past, and still to this day, website owners would simply place links to the website agreements at the bottom of the website. Website visitors and/or members could simply browse these agreements as they sought necessary. As such, these types of online agreements are typically referred to browser wrap agreements. Unless all browser wrap agreements contain language that states access to and use of the website is the website visitor’s manifestation of assent to the terms within the web agreements, these may not be the most enforceable type of online contract; see Hines v. Overstock.com. The reality is that most people do not access these agreements or privacy policies, let alone read them. As such, it is not out of the question for a website visitor and/or member to claim that the agreement is unenforceable, and that the terms are not binding upon him or her.
In order to overcome this type of defense, many website owners began using what are known as clickwrap agreements. In particular, a clickwrap agreement is one where a website visitor must click “I Agree” or “I Accept” before being able to access and utilize the website offerings. The clicking of the button can be tracked by the website owner, tied to a particular user name and/or IP address, and used as evidence of the visitor’s agreement to the terms of the online or ecommerce contract. Website owners are well-served to utilize clickwrap agreements rather than browser wrap agreements.