Zappos' Terms of Use Was a "Browsewrap"

Courts generally divide user agreements into one of three groups: "clickwraps," "browsewraps" and "clearly not a contract."  I don't use the term clickwrap; instead I prefer the term "clickthrough agreement."  A clickthrough agreement is presented to users in such a way that they must take some action--usually, clicking on a button--that unambiguously signifies that they are assenting to the contract.  When properly implemented, clickthrough agreements are extremely effective in courts.

In contrast, "browsewraps" are user agreements that purport to bind users simply because users browse the website.  I don't use the term browsewrap; instead, I prefer to call those documents "not a contract."  Although there are some aberrational cases to the contrary, for the most part courts do not treat browsewraps as a contract, and anyone relying on a so-called browsewrap does so at their extreme peril.