PRACTICAL IP – Are Embedded Hyperlinks Enforceable as a Contract?
Or can you just click away without regard for what you're clicking?
In the U.S., terms embedded in a hyperlink can be enforceable as a contract, but it depends on the specific circumstances of the case.
Additional terms in online agreements that are accessible through an embedded hyperlink are themselves most likely enforceable. A customer should read them and not ignore them. Nevertheless, the drafter providing the agreement should include language that would make enforceability of the addenda more likely.
Online agreements, such as Terms of Service and Master Services Agreements, sometimes include nested hyperlinks to additional documents that relate to a different aspect of the relationship between the contracting parties. Common reasons for including the links are to shorten the main agreement and to be able to revise terms relating to the adjunct provisions more easily. The linked destination documents are not signed but are intended to be incorporated into the main agreement. A customer reviewing the document should not gloss over those additional terms but should click on the link and review the terms.
Generally speaking, to be enforceable, the terms must be reasonably communicated to the user, and the user must have agreed to them. This is often referred to as the "clickwrap" or "browsewrap" agreement.
A clickwrap agreement requires the user to take an affirmative action, such as clicking a button, to indicate their agreement to the terms. This is commonly used in online transactions where the user is required to click "I Agree" before proceeding with a purchase or accessing a service.
A browsewrap agreement, on the other hand, relies on the user's implied consent through their use of the website or service. The terms are often contained in a hyperlink or located on a separate page and are not directly presented to the user. Courts have been more reluctant to enforce browsewrap agreements because it may be unclear whether the user had actual notice of the terms and intended to agree to them.
The enforceability of terms embedded in a hyperlink will depend on the specific facts and circumstances of the case. It is always a good idea to review and understand any terms and conditions before agreeing to them, regardless of the format in which they are presented.
A company providing the agreement should add language to the main agreement to help ensure the additional terms are binding. For example, if the hyperlinks are in the middle of the document and not adjacent to the signature block or the box to click to accept the terms, the drafter should add language near those acceptance locations stating that the provisions hyperlinked to the document are part of the main agreement.
Making the hyperlinks stand out through color or larger font or making the hyperlink bold and/or in italics, helps to enforce the linked terms. The more it is clear that the customer has manifest assent to all the terms, the more likely it is that the added terms are binding.