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A click-wrap agreement is a common type of online contract between consumers and online suppliers of goods and services. If you've ever been asked to agree to the terms and conditions of a website, you've come across this type of agreement before.
But if you need to create a click-wrap agreement for your website or app, there are a few things you'll need to consider first. Keep reading to find out how click-wrap agreements work and what information they should include.
What is a click-wrap agreement?
Do you accept these terms and conditions? Most of us simply click "I accept" without taking the time to review all the information, but this is an example of a click-wrap agreement.
A click-wrap agreement is an online agreement that establishes a contract between your business and a consumer. It allows you to obtain a user's consent to specific terms and conditions before they purchase a product or proceed with a download.
As its name suggests, a click-wrap agreement requires users to click a box to indicate that they accept the terms and conditions. The click-wrap name is derived from so-called "shrink-wrap contracts", which were contracts printed on shrink-wrapped products such as software.
When should I use a click-wrap agreement?
Click-wrap agreements are a common requirement on websites that sell goods or services. For example, if you sell products online or offer software downloads, it's likely that you'll need to create a click-wrap agreement.
Click-wrap agreement vs browse-wrap agreement vs sign-in wrap agreement
A click-wrap agreement should not be confused with a browse-wrap agreement, which is a slightly different form of online agreement.
Browse-wrap agreements are created without the user actively giving their consent. Rather than the consumer's attention being drawn to a separate window where they must give their consent, there are instead links at the bottom of the page that take users to the site's terms and conditions. These T&Cs will then generally contain a statement that simply by using the website or service, users agree to the terms and conditions.
There's also a third option available — a sign-in wrap agreement. This requires users to accept the terms and conditions when they provide their details to sign up for an online service. You can see an example of this type of agreement on the Finder homepage when you create a new Finder account.
What does a click-wrap agreement include?
A click-wrap agreement directs the consumer to a separate window where they are encouraged to review the website's terms and conditions. This legal document may be accessible via hyperlink, or it may be available to scroll through in the same window.
The user will then have to check a box to indicate that they accept the terms and conditions before they can proceed.
How effective is this type of agreement?
Generally speaking, Australian courts have found click-wrap agreements to be legally binding. Under Australian consumer law, there are restrictions on what you can and can't include in a contract with consumers. You'll need to make sure your click-wrap agreement doesn't breach any of these limits to ensure that it remains enforceable.
However, enforcing browse-wrap agreements is more difficult and complicated.
Do I need a lawyer for a click-wrap agreement?
It's up to you to decide whether you need legal advice to create a click-wrap agreement.
However, an effective click-wrap agreement is essential if you do business online. Contract law can also be a confusing area. For example, you'll need to take care when selecting the wording attached to the box the user must click to accept the T&Cs to ensure that the agreement is binding. As a result, it may be a good idea to seek advice from an experienced business lawyer.
How do I write a click-wrap agreement?
You have a few different options when creating a click-wrap agreement. You could create it yourself, customise an online template to suit your business, or pay a lawyer to draft the agreement for you.
If you create it yourself or use a template, you'll need to take extra care to make sure it is legally enforceable. Seeking legal advice will obviously cost more, but it'll also ensure that the contract satisfies all relevant legal requirements.
Where to get free legal documents and templates online
You can see examples of click-wrap agreements on the websites of many reputable online retailers. These should give you a better idea of exactly what information you need to include in an agreement.
If you're searching for a free click-wrap agreement template, some online services also offer access to free, customisable templates. For example, LawPath offers a software licence click-wrap agreement that can be customised in five minutes. However, you'll need to create an account in order to access the template.
Just make sure that any template you choose is suitable to create a legally binding agreement.
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