If your website employs a browsewrap website legal agreement, there are a number of practices you should follow to make sure that agreement is enforceable should you ever need to enforce it. Typically, browsewrap website legal agreements are intended to provide all sorts of legal protections for your website / business (disclaimers, limitations on liability, binding arbitration...lots of stuff...talk to your lawyer!) - but if its not enforceable then it does you no good at all. Below are some of the best practices we have found based on scouring millions (well maybe not millions) of pages of case law on the subject.
- Make sure website users have actual or constructive knowledge of the existence of a browsewrap agreement PRIOR to using the site. Links to the browsewrap agreement should be prominently displayed. If a user is
required to scroll to the bottom of the webpage in order to see a link to a browsewrap - it probably is NOT enforceable.
- If possible, make sure the link to the browsewrap is immediately visible when a webpage opens in a browser window. Remember, if enforecability is questioned - the site must be able to prove / explain how user is made aware of the website legal agreement.
- Make the link conspicuous - larger, different font, color...etc - differentiating it from other links and content. The link should NOT be buried among other links.
- Any clickwrap agreements used on the site should also refer to browsewrap agreements during clickwrap acceptance.
- A link might not be enough - there should be prominent notice that user would be bound by the website legal agreements by using the site.
Of course, the best overall strategy for ensuring your website legal agreements are enforceable is to use a rock-solid clickwrap agreement. But if you must rely on a browsewrap agreement to protect your business online, make sure you follow the steps listed above.