What's The Difference Between A "Clickwrap" And A "Browsewrap"?

In that so many self-storage companies are moving to online lease transactions, it is becoming increasingly important for those companies to have in place the mechanisms needed to ensure that once a prospective tenant “clicks and accepts” their lease, there is no room for that tenant to later claim “I didn’t know the rules” or “I didn’t agree to that,” which brings us to the topic of how a facility’s terms and conditions should be presented on its website to make sure those terms and conditions are enforceable.

What Is A Browsewrap Agreement?
A browsewrap is a system where a customer is directed to a location on the facility’s website (usually by a hyperlink) where the customer can review (or browse through) the listed terms and conditions. The website would then provide a notice that states: “Your use of our site constitutes your acceptance of the terms and conditions provided.”

As you might imagine, most customers may never take the time to click on the linked terms and conditions to read them before agreeing to the referenced transaction and there is no way for the business to assert that the customer did in fact review them, since there is no specific “assent” required as part of the browsewrap review. As a result, the use of a browsewrap agreement is commonly disfavored in comparison to the other option, the clickwrap agreement.

What Is A Clickwrap Agreement?
A clickwrap agreement is defined by the use of a checkbox where the customer must “toggle” through the terms and conditions before reaching the place where the customer must then “agree” to those terms and conditions that were just provided. The clear difference between the browsewrap and clickwrap is the verification that prior to providing their assent to the terms and conditions, there was a physical act of scrolling through the terms and conditions and an affirmative checkbox to agree to those same terms and conditions. As such, clickwrap terms and conditions are seen as a stronger way to confirm the approval of the terms and conditions of an agreement by a customer (or tenant) and therefore a stronger way to enforce those provisions.

In the cases that have dealt with clickwrap agreements, the courts have equated the act of scrolling through the text with the act of a customer reading though the provisions of a multi-page contract. At the end of the agreement, once signed, it is considered by the court to have been read and understood by the customer who has elected to execute the agreement. There have been multiple cases that have addressed these issues and found clickwrap agreements enforceable as compared to browsewrap agreements (DeJohn v. The TV Corp.; Zaltz v. JDate; I.Lan Systems v. Netscout; Scherillo v. Dun & Bradstreet; Nguyen v. Barnes & Noble).

Whatever method is used, there are some common elements that should be included in a self-storage facility’s website, especially those under which a rental agreement may be executed, to enhance the potential enforceability of the lease if a tenant claim arises after a move-in. These recommendations are:

1. Using a “check box” so that there is a specific location where the tenant may click to show their assent to the terms and conditions with clear notice language that says: “By clicking on this tab, you are stating that you have read all of the terms and conditions provided and agree to all of those terms and conditions.”
   
2. Adding functionality to confirm that if the tenant does not assent to the terms and conditions they cannot complete the transaction to enter into the lease with the facility.
   
3. Providing the terms and conditions in a scroll box so the tenant must affirmatively scroll through the document before they can agree to it.
   
4. Presenting the terms and conditions in a sufficient font size that can be easily read by the user (at least 12 point) and in some states, the terms must exceed 12-point font (North Carolina and Nevada would use 14-point font for certain provisions).
   
5. Providing a mechanism by which, after the terms and conditions have been accepted, those same terms and conditions (or a copy of the executed contract) are viewable and printable by the tenant.

Scott Zucker is a partner in the law firm of Weissmann Zucker Euster Morochnik & Garber, P.C. in Atlanta, Georgia.