Advancement of technology, globalization, speed, convenience and efficiency are the prime attribute to promoting the electronic contract. All the general rules such as offer acceptance and other qualification of contract are mentioned in the Indian Contract Act 1872 are applicable, adding to that certain provisions of IT Act 2000 authenticate its importance.
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Browse Wrap Agreement or Browse Wrap License
Browse Wrap term is used to denote access to the use of materials which are available on websites for use and download, which is hyper-linked, and users must agree in exchange for using the website. Such types of agreements are intended to be binding on the contracting parties by the mere browsing of the website.
Such a type of contract does not require the manifestation of assent by clicking “I Agree” or “I Accept” tab, but a web-site user purportedly gives his or her assent by simply downloading or using the product or by entering the website.
An important feature of browse wrap agreement is that the party/ user can see the applicable terms and conditions before downloading/ using the product, which exhibits more transparency compare to other electronic contract, and it deem to be constructive notice by the court.
The answer may touch both the aspects, it is sort of an implied contract, as no clear manifestation of acceptance is given, but the mere use of website implies consent to the terms and conditions of website.
It is also important to perceive the standard contract doctrine which enunciates that when an advantage is offered subject to declared conditions, and the user decides to obtain the benefit with knowledge of the conditions of the offer, the act of taking the benefit constitutes an acceptance of the terms, which therefore become binding on the user.
Conditions for Binding in Browse Wrap Contract
Visibility on Website: There must be a reasonable anticipation that the user of the site would see it, either it is being exhibited to look for or displayed clearly so that user can visualize it easily before using the website.
Manifestation of Over Act: There must be some kind of physical over action, like downloading, accessing a site, that is sufficient to constitute an act of acceptance.
Thus, a browse-wrap agreement can be created by use of a web page or a hyperlink or a small disclaimer on the page. Courts examine the enforceability of browse-wrap agreements on a case-by-case basis, and there are no “bright-line” rules on whether a given agreement is sufficiently conspicuous.
Notice to the user is the key to enforce-ability.
- Legal enforce-ability in browse wrap agreement by Notice
- Legal enforce-ability is the fundamental condition of any contract, in browse wrap agreement; such as “using the Website, you’re agreeing to the terms and conditions of the agreements claiming that merely by click.
About the author: Naveen Kumar Shelar is an advocate and a legal consultant, who founded the online law firm – The Law Office. He is an author of several academic & professional legal books and management articles, and established an NGO called “Nayaya A Voice For Justice” to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge