Emma F. Duke

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When a smartphone user browses a website or downloads a new application (app), the user will most likely be met by a pop-up or hyperlink providing the infamous “terms and conditions.” How many users click and explore the terms and conditions posed by the website or app before clicking “I Agree” and continuing on? Unbeknownst to most users, the terms contained within that seemingly insignificant link can have long-standing consequences if litigation were to arise.

The terms and conditions hyperlink a smartphone user often sees when signing on to an app is called, in the world on internet contracts, a browsewrap agreement (browsewrap(s)). To determine the enforceability of browsewraps, courts consider whether the terms and conditions are reasonably conspicuous and whether the user, while on notice of the terms, continues using the app.5 These two elements—conspicuous terms and continued use—are critical to support a finding that a browsewrap agreement and its terms are enforceable against a user.

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