Description
Similar to a “click-wrap” licence, a Browse-wrap Licence (also commonly known as “Browsewrap” or “Browserwrap”) has been devised to bring the full terms and conditions of use of a website (which may include a software licence) to the attention of a website visitor/end-user. It expressly states that continued access to/browsing the website contents and/or using/downloading the website materials (including but not limited to downloading software) is implied/constructive acceptance by such end-user of these terms and conditions.
However, unlike a “click-wrap” which requires the end-user to perform the positive act of clicking an “Accept” (or “I agree”) button (which is, in essence a digital signature) prior to the end-user being able to, for example, download software or access and use a service, as in the case of a subscription SaaS-type service; a browse-wrap licence merely requires the end-user to continue using the website/downloading content or software on the presumption that the end-user has constructively/impliedly consented to continue after the terms of the browse-wrap has been displayed at the outset.
There are numerous examples of how browse-wrap terms can be displayed, including an initial website homepage pop-up box (similar to that commonly used pop-up box which notifies a visitor that the website uses “cookies” and requests the visitor’s consent or indeed the browse-wrap version of this is to state that continue use of the website is the visitor’s implied consent to the use of “cookies”), or conspicuously notifying the visitor elsewhere on the website homepage that continue presence on the website again is the visitor’s implied consent to the browse-wrap terms and conditions (and licence) which may typically be a hyperlink at the bottom of the homepage or each webpage.
If the end-user has to complete a registration or login form or pay for continued use (all of which usually including ticking a box consenting to terms and conditions) before being able to proceed, then this is less browse-wrap and more click-wrap since the end-user must actively give express consent rather than consent being implied by no intervention other than continuing on the website.
As always with trying to prove implied consent/acceptance, it will depend wholly on whether it can be shown beyond all reasonable doubt that any website visitor/end-user could not possibly have avoided or bypassed the notice informing them of the browse-wrap licence and that continued presence/use would be their deemed consent/acceptance.
This contract contains the same terms and conditions as the Click-wrap software licence in Contract 61A except the first paragraphs which notifies the end-user that their continued access, use and/ or download of any material or software will automatically be deemed as their consent/agreement to be bound. Similar wording can be used to precede standard website Terms and Conditions of Use (see Contract 69).
