Are Your Browsewrap Agreements Enforceable?

Feb 21, 2013 2:13:34 PM

If your website is like most, your browsewrap agreements are probably NOT enforceable and they most likely are just wasting space on your website.

First things first - "browsewrap agreements" are website legal terms (such as a Terms of Use, a Privacy Policy or Disclaimer) that are not affirmatively accepted by a website user - i.e. - the user is not checking a box or clicking an "Accept" button. Rather, the website user is SUPPOSED to be bound by the terms of a browsewrap agreement simply by using the site. Most of the time you will find links to browsewrap agreements in the footer of a web page, usually along with lots of other links. Often times these links are buried and very difficult to find.

Guess what? If your website is relying on a browsewrap agreement buried in the footer of your is probably meaningless and completely unenforceable. Not because of what the browsewrap agreement says (although the content of a browsewrap can certainly make it unenforceable), but rather because it is...well...buried in the footer of your site.


So Why Does That Make a Browsewrap Not Enforceable?


In order to bind a website user to a browsewrap agreement, the user needs to have what is called "actual or constructive notice" that 1) the browsewrap exists and 2) that their use of the website makes them bound to the browsewrap agreement. In other words, if they don't know it is there, and don't know why it is there, it can' be enforced.

Think about it - if you are hiding your browsewrap agreements behind links in the footer of your site - how can you expect them to be enforceable? How can your browsewrap be enforceable if the website user most likely has no idea that it even exists?

How can PactSafe help you make sure your browsewrap agreements are enforceable? Sign up for email updates at so we can let you know when we launch!


Brian Powers

Written by Brian Powers

PactSafe CEO & Founder