Browsewrap Agreement

What is a browsewrap agreement?

A browsewrap agreement is a set of website terms that claims to bind you just because you use the site. The terms usually sit behind a "Terms" link at the bottom of the page. You never click "I agree," and you may never see them.

It is the weakest common way to form an online contract. A 2022 Ninth Circuit ruling says enforceability generally depends on whether the terms were conspicuous, meaning easy to notice. In a concurring opinion in Berman v. Freedom Financial Network (9th Cir. 2022), one judge wrote that under California law, browsewrap agreements are "unenforceable per se," meaning unenforceable on their own. That was not the court's main holding. The majority opinion notes that courts are more skeptical of browsewrap than of clickwrap.

Compare this with a clickwrap agreement, where you take a clear action to agree, which courts typically enforce.

A real change we caught

Venpo flagged that using Grafana's website now binds you to arbitration. Under those site terms, using the website itself is treated as agreeing, and disputes go to arbitration, a private process outside the courts. That is browsewrap wording applied to a high-stakes clause.

Why it matters to you

Browsewrap terms often cover the public parts of a vendor: the marketing site, documentation, status page or community forum. Your team may visit these daily. The vendor may argue that each visit accepts terms you never read, including an arbitration clause or a liability limit.

The same idea shows up when terms change. Many vendors say that posting new terms is enough, and that continued use as acceptance binds you. In Douglas v. U.S. District Court (9th Cir. 2007), a court refused to hold a customer to revised terms posted only on a website.

Weak does not mean harmless. Courts decide each case on its facts, and the law varies by state. Do not count on a court throwing these terms out for you.

What to check

• Which of a vendor's sites and pages have their own terms, separate from your account terms.
• Whether those site terms include arbitration, a class action waiver or a liability limit.
• Whether your signed or click-through contract says it overrides other terms. See order of precedence clause.
• Whether the vendor treats posting a new version as notice, with no email.

How Venpo helps

Browsewrap terms change quietly because there is no click to collect. Venpo watches your vendors' terms and other public legal pages and emails you a plain-English alert when they change, with what changed and why it matters.