Contracts may be concluded electronically, provided that it does not affect its validity or effectiveness due to the use of this medium. Please note that general contractual clauses requiring electronic conclusion of consumer contracts are prohibited.

The provider shall make available to the recipients, before the conclusion, unambiguous minimum information including (i) the contract conclusion process, (ii) whether or not the contract is stored by the service provider and accessibility by the recipient, (iii) the language or languages in which the contract may be concluded, (iv) the technical means which the provider makes available so that errors of introduction which may be contained in the order form may be identified and corrected, (v) the contractual terms and general clauses of the contract to be concluded, (vi) the codes of conduct subscribed and information on how to consult them electronically  and (vii) the effective technical means which allows the recipient to identify and correct inserted errors.

The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

These types of terms and contracts are enforceable provided they are validly made, which includes ensuring that the users are made aware of (and, ideally, actively and explicitly accept) the terms of the contract prior to purchase or use of online services. This is usually done by a “tick-a-box” method of acceptance of terms of sale where consumers are purchasing goods or services online.

Online terms which are in line with the E-Commerce Act (and, if applicable, the Consumer Protection Act) are recognized and fully enforceable. In accordance with consumer protection laws, consumers are usually entitled to revoke the respective non-compliant contract. It is recommended to notify customers about their right to revoke such contracts (including a revocation template) in a document separate from the terms and conditions.

The enforceability of shrinkwrap terms is severely disputed under Austrian and EU law. This is due to the provisions of Austrian law stating that a contract should be finally concluded before it is executed, and most shrinkwrap agreements do not meet this standard. In addition, under EU law the Rome I and Brussels I regulations also affect this issue and in some cases limit the applicability of shrinkwrap licenses.

In order to enforce online general terms and conditions (including online or clickwrap terms), (i) the contractual provisions must be made available to the other party in such a way that he or she can store and display them; (ii) the other party must have been aware and have consented to the content of the terms; and (iii) a written mention of the other party accepting the terms can be given by any means which guarantees that the acceptance stemmed from that party.

Online agreements are generally considered enforceable if they are clearly available for the user's review. There is no specific law requiring that the user needs to indicate affirmative assent (eg, separately "check a box") to confirm his or her acceptance to the content and provisions of the agreement. Considering the current lack of specific legislation, the general rules of contracts apply. For instance, if the law does not require express acceptance, such acceptance may be tacit. Therefore, the act of using the services or purchasing the goods may be deemed a tacit acceptance.

It is important to stress that the use of "adhesion contracts" (ie, a written agreement drafted by one of the parties and which, in principle, cannot be amended by the other party) is allowed under Brazilian law. However, owing to their nature, the law and the courts tend to protect the party in the weaker position (ie, adhering party). Brazilian courts may disregard a contractual provision if such provision is deemed abusive (eg, if it contains a waiver of a right by the adhering party).

Generally speaking, clickwrap or shrinkwrap terms have been enforced applying general contract principles. With online contracts, the existence of a mutual agreement turns on whether it can be shown the user had reasonable notice of the terms. As such, providing sufficient notice in online agreements is essential to ensuring an enforceable contract, along with complying with consumer protection laws.

It is important to note that several provinces, including Ontario, Québec and Alberta, have legislation that limits a consumer’s right to potential remedies, such as bringing an action (eg, a class action), notwithstanding an arbitration clause.

Online, clickwrap and shrinkwrap agreements are generally viewed as enforceable, as Law 19.799 provides acts and contracts concluded electronically with the same legal value as written documents. If they are concluded with consumers, such consumers must previously be given understandable and unambiguous access to the general conditions of the contract, as well as the possibility of storing or printing them. General terms and conditions used within the framework of an electronic contract must have a letter size of at least 2.5 millimeters. The supplier is obliged to send the consumer a written confirmation of the electronically concluded contract by electronic means or by any other means of communication that ensures that the consumer is duly and appropriately informed, which must contain a full, clear and readable copy of the contract.

Online/clickwrap/shrinkwrap agreements are generally enforceable.

The validity of a pre-formulated standard contract that is not negotiated with the counterparty (including online/clickwrap terms) is subject to conditions provided by the PRC Civil Code and the Contract Interpretation. For example, a standard contract formulated by 1  party, which excludes the main rights of the counterparty, or unreasonably reduces its own obligations or aggregates the counterparty’s obligations, could 

Online, clickwrap and shrink-wrap agreements are generally recognized by Colombian law and are enforceable if they are conspicuous and users have an opportunity to review and indicate affirmative assent.

Generally viewed as enforceable if conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box).

Online terms are generally viewed as enforceable if conspicuous and users have an opportunity to review.

According to the E-commerce Act (227 22/04/2002), companies offering services online must make terms available in a way which makes it possible to save and retrieve them.

In business-to-consumer relations, specific rules apply. For example, the consumer must be able to scroll through the terms and must actively accept these (eg, by clicking “I agree”).

In B2B context, online terms are generally considered enforceable provided that they have been accepted and available to the other party upon contracting. Even a link to applicable online terms may suffice to make them enforceable provided that the other contracting party has had a sufficient and actual chance to become acquainted with the terms upon contracting and that these online terms do not include surprising and strict terms or conditions. If the online terms include surprising and/or strict terms or conditions, these strict terms or conditions must be separately specified and informed to the other party.

In the B2C context, several limitations apply due to consumer protection legislation.

Online terms are generally viewed as enforceable if conspicuous, and users have an opportunity to review and indicate affirmative assent (eg, check a box).

The incorporation of online and clickwrap general terms and conditions into a contract is generally possible. However, it is debated whether shrinkwrap terms and conditions can validly be incorporated. It seems that the purchaser does not have an opportunity to take note of the contract text and the terms before the contract is concluded and the protective cover is opened.

Newly implemented consumer laws have led to material changes in German contract laws (B2C). In particular, the sale of digital products as well as contracts on products with digital elements are now addressed in detail. Further, contracts concerning continuing obligations may in general not be concluded for extensive periods of time, and automatic renewals are strictly regulated. For such continuing obligations, consumers have the possibility to terminate via a cancellation button on the respective website.

Online terms are generally enforceable if they are conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box or click-through).

Generally viewed as enforceable if conspicuous and if users have an opportunity to review and indicate affirmative assent (eg, check a box).

Online terms are generally viewed as enforceable subject to compliance with Indian contract law and the IT Act. Users must have an opportunity to review and indicate affirmative assent (eg, check a box) to contractual terms.

Online transactions via an electronic contract are generally binding upon the parties. The online offeror must make available complete and true information about the terms, producer and products offered in the online transaction.

The enforceability of online terms is determined in Ireland by their compliance with normal principles of contract and consumer law, rather than by their medium.

The Unfair Contract Terms Directive, 1993/13/EEC is implemented in Ireland by the recently-enacted Consumer Rights Act 2022. The 2022 Act also implements Directive 2019/770 (on contracts for the supply of digital content and services) and EU Directive 2019/771 (on contracts for the sale of goods).  This applies to the content of online/ click wrap/shrinkwrap contracts in a business to consumer context . The Act introduces a new “black list” of contractual terms that are always unfair in consumer contracts, including clauses that have the effect of giving traders the exclusive right to determine whether goods are in conformity with the contract or of granting the trader a shorter notice period to terminate the contract than the notice period required of the consumer. In addition, a “grey list” of terms that are presumed to be unfair is set out in the Act. A contract which contains unfair terms risks being unenforceable against the consumer.

The Consumer Rights Act 2022 also implements Directive 2011/83/EU on consumer rights, which prescribes certain information that must be provided to consumers in order for distance contracts (including agreements conducted online) to be enforceable.

Online terms are generally viewed as enforceable under Israeli law, subject to aspects involving a standard contract, as further discussed above.

Nevertheless, when entering into an agreement that is reviewed and signed online, companies should ensure that the signer has the opportunity to review the terms of the agreement beforehand and that the signer provides their consent to the agreement (such consent should be retrievable for evidentiary purposes), subject to the restrictions set forth in the Standard Contracts Law, as further discussed above.

It should be noted that in some decisions of the Israeli district courts (which are not binding case law, but rather guidance for lower courts) it has been ruled that the courts' tendency will be to revalidate online agreements when the signer has provided active consent (ie, clickwrap agreements or even hybridwrap agreements, where a clear and accessible link to the terms has been provided), as opposed to shrinkwrap (or browserwrap) agreements, where the active consent of the signer is not required.

In general, governing law provisions, including foreign governing law provisions, specified in a commercial contract will be accepted and recognized by Israeli courts. However, in certain circumstances, the Israeli courts may be prepared to apply Israeli law, such as when immediate temporary relief is required, with regard to civil legal procedures or where the agreement is deemed to be a standard Contract (as further discussed above).

It should be noted that, in some recent decisions of the Israeli district courts (which are not binding case law, but rather guidance for lower courts), it has been ruled that, with respect to standard contracts entered into between multinational corporations and numerous Israelis, with respect to services provided to or targeting Israelis, that determine a foreign jurisdiction and foreign governing law, Israeli courts will apply Israeli jurisdiction and law on the basis that such determination of foreign jurisdiction and law is considered a prejudicial term in a standard contract. In addition, the Supreme Court ruled in a case relating to a major technology company that, notwithstanding the agreement between the parties (which constituted a standard contract), Israeli courts would have jurisdiction but the governing law would be the contractually agreed foreign law, as the plaintiff had failed to demonstrate that such law was unfairly prejudicial. This decision constitutes a binding precedent.

The following considerations should be taken into account when entering into an online contract, especially in case of clickwrap and shrinkwrap terms.

Pursuant to Section 1341 of the Italian Civil Code, in case of standard terms and conditions drafted by a single party, some provisions (so-called “unfair clauses” that are one-sided to the benefit of the entity that drafted the contract) would be enforceable against the party who did not have the chance to negotiate the contract solely if specifically accepted in writing by the latter. In this case, the contracts would require a "double signature:" one for the specific approval of the abovementioned provisions and another for the general acceptance of the whole contract. In particular, the Italian Civil Code identifies as unfair clauses the provisions, which:

• Limit the liability of the party who prepared the terms and conditions
• Give the said party the right to withdraw from the contract or to suspend the execution thereof
• Burden the other party with time limits for the exercise of a right or limitations of such party's power to raise defenses or with restrictions on freedom of contract with third persons, or with tacit renewal of the contract, or
• Provide for arbitration or derogations from the normal venue or jurisdiction of the courts.

In B2C contracts, the clauses which are set by the vendor with no negotiation and which cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer, shall be considered "unfair clauses" and therefore void. Where said clauses are the result of a negotiation between the vendor and the consumer, such clauses shall be considered effective, provided that they:

• Do not exclude or limit the liability of the vendor in the event of death or injury to the consumer due to an action or omission of the vendor
• Do not exclude or limit the consumer's power to raise defenses in case of non-fulfillment or inadequate fulfillment of the vendor's obligations and
• Result in the acceptance of clauses that the consumer could not examine before the conclusion of the contract.

Even if these provisions are negotiated between the parties, the clauses providing for the exclusions or limitations indicated above are always considered null and void, leaving the remaining provisions of the contract valid.

Online terms are generally considered enforceable if conspicuous and users have an opportunity to review terms in advance.

Under the Civil Code, terms of service or use would fall under the definition of the adhesion contract (i.e. template terms and conditions prepared by one party for agreements between unspecified counterparties which is expected to be used without variation). To have an adhesion contract legally binding, consents from counterparties to execute the adhesion contract is necessary. In addition, to amend adhesion contracts, the content of the amendment must be (i) beneficial for the counterparties or (ii) consistent with the original intention of the adhesion contract and its underlying rationale (several factors will be considered in making this determination), or the party shall get consents from counterparties.

The Electronic Contract Act (Act No. 95 of 2001) allows a consumer who had erroneous operation of a computer (eg, accidental click) to cancel the contract if the company does not take appropriate measures ( eg, easily understandable order confirmation display) for the consumer to reconfirm the details of the order before the final click.

When a contract is drafted by 1 party and the other party merely has the opportunity to accept it (ie, the contract is not negotiated), some provisions must be specifically approved in writing by the other party in order to be enforceable against the party that has not drafted the agreement. Such provisions include those relating to limitation of liability, time limits, exclusivity, withdrawal rights and choice of venue.

For contracts approved online, it is a common practice to contemplate a second checkbox to specifically approve the relevant clauses. However, such second tick is not deemed sufficient, and consequently there is the risk that users challenge the enforceability of the provisions mentioned above while the other terms of the contract will remain valid.

Online terms are generally viewed as enforceable as long as they are conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box).

In order to be enforceable, the customer must have accepted the terms, usually by ticking a box, and a copy of the terms must be provided or made available. The obligation to provide a copy of the standard terms means that the user must afford the other party a reasonable opportunity to review and accept the standard terms prior to or at the time of conclusion of the agreement. The user has afforded the other party this opportunity when they have handed over the standard terms to the other party at the time of entering into the contract. This obligation will be satisfied in an online environment if the standard terms were made available to the consumer either prior to or upon concluding an agreement in such a manner that the consumer could download them and save them on their own data carrier (eg, hard drive or USB stick), as the other party must also be able to refer to them at a later point in time. Including a link to a website is not sufficient.

Information is not denied legal effect solely because it is in electronic form or is an electronic communication. Therefore, online, clickwrap and shrinkwrap agreements are generally enforceable, provided that they are validly made (including giving appropriate notice of terms and conditions).

However, traders must also be mindful of the statutory rights of consumers as well as fair trading requirements, as these may impose additional terms and/or render some terms unenforceable. 

Given the emphasis placed on a user’s content, courts in Nigeria favor binding agreements where the user engages in affirmative conduct, acknowledging the terms of an agreement. Courts do not reasonably require the terms to be read but require that the user had reasonable notice and an opportunity to read the terms. For a browse-wrap agreement to enforceable, the website must give the user actual or constructive notice of the agreement, and the user must consent to the agreement.

Online terms are generally viewed as enforceable if conspicuous, and users have an opportunity to review and indicate affirmative assent. This can, for example, be done through a checkbox.

Companies offering services online must make terms available in a way which makes it possible to save and retrieve them, according to the E-Commerce Act.

In a business-to-consumer situation, specific rules apply.

N/A

Online, clickwrap and shrinkwrap agreements are generally viewed as enforceable if they are conspicuous and users have an opportunity to review and indicate affirmative assent (eg, checking a box).

Online and clickwrap general terms and conditions are enforceable. However, if written form is prescribed by law (eg, agreements on the transfer of an author's economic rights must be in written form), the document must be signed in a written form (ie, with handwritten signatures or Qualified Electronic Signatures). Therefore, such agreements cannot be concluded as clickwrap terms and conditions. The enforceability of shrinkwrap terms is less clear, especially with regard to the business-consumer relationship.

Online terms are, in principle, enforceable in cases where the legal requirements applicable to the agreement are met.

Online, clickwrap and shrinkwrap agreements are generally viewed as enforceable if they are conspicuous and if users have the opportunity to review and indicate affirmative assent, such as through checking a box. However, unusual clauses, such as limitation of liability clauses or clauses containing the right to unilaterally terminate the contract or suspend the performance of the obligations and the like, must be expressly accepted in writing in order to be enforceable.

There is still no established practice on acceptance or enforceability of online terms. In most cases, however, such online terms should be deemed binding if accepted by the addressee (eg, by click method), and such accepting party can be identified in case of dispute.

The enforceability of online terms (including whether the user has given appropriate consent to such terms) should be reviewed on a case-by-case basis.

Online/clickwrap/shrinkwrap contracts are generally enforceable in Singapore. Online transactions are regulated by the Electronic Transactions Act 2010 . This sets out the legislation surrounding the formation of contracts through online and electronic means and enforceability of these contracts.

To facilitate electronic transactions for businesses and citizens in Singapore, the Electronic Transactions Act has been amended by the Electronic Transactions (Amendment) Act 2021 which came into force on March 19, 2021 – please refer to the previous section on “Commercial Contract Framework” for more information.

Not applicable for this jurisdiction.

The Framework Act on Electronic Documents and Transactions stipulates that an electronic document shall not be denied its validity only because it takes an electronic form, unless otherwise provided in other laws.

Nor is there any law that restricts the effectiveness and enforceability of a contract in an online form.

For standardized contracts which we understand will be the case for most agreements executed via a web interface, the validity and effectiveness of such agreements will depend on meeting the requirements of the STCA. There is no black-letter law on what would be an acceptable form in an on-line setting to satisfy the foregoing requirements. However, it is widely accepted that a mere posting of the contract and its terms and conditions on a website would not be sufficient. Commonly used methods to meet this requirement include the posting of the online contract with an "I accept" button at the end (which can be clicked only if the counter-party had scrolled the screen to the bottom) or having a pop-up window show up with an explanation of the major terms and conditions and then having the other party click an "I understand" button.

Generally viewed as enforceable if conspicuous, users have an opportunity to review and indicate affirmative assent (eg, check a box).

The LSSI regulates electronic contracts, although the Spanish Civil Law must be also taken into account. The LSSI further obliges service providers to provide information in a clear, understandable and unambiguous way regarding the conclusion of the contract. Electronic contracts will have the same legal effects, provided that the consent and other legal requirements that is object and cause have been satisfied.

Online terms are generally viewed as enforceable if conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box).

Companies offering services online need to make terms available in a way which makes it possible to save and retrieve them according to the Act on E-Commerce.

In a business-to-consumer situation, specific rules apply.

All contractual terms applicable must be made available to the contracting party and/or consumer before conclusion of the agreement. To this extent, shrinkwrap terms may only apply if visible and recognizable before the contract has been concluded (ie, before opening the package).

Online and clickwrap terms are likewise enforceable if they have been made available and recognizable before conclusion of the agreement. They also have to be clearly phrased.

Online, clickwrap and shrinkwrap agreements are generally enforceable if material terms and conditions are conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box), provided that, among other obligations under the Consumer Protection Act, sellers shall allow consumers to return the products within 7 days without any cause at the expense of sellers.

Ukrainian legislation does not distinguish such forms of agreements as online, clickwrap or shrinkwrap agreements (or terms). Formally, the agreements concluded according to the requirements of the E-Commerce Law – presumably, online or clickwrap agreements – are deemed enforceable. Additionally, the law established that the validity of an electronic document cannot be denied solely due to the electronic form of the document. However, in practice, such forms of agreements may be rejected by controlling authorities. For example, state authorities require that the software licenses must be provided in a written form to duly confirm the rights of the Ukrainian legal entities to use relevant software.

Article 12 of the Copyright Law provides that the assignment of rights to commercial exploitation pertaining to computer software, its applications or databases, shall be subject to the licensing agreement associated or attached to the program, whether appearing on the supporting bar or upon downloading or saving the program. The buyer or user of the program shall be bound to abide by the terms set out in the said agreement.

The legal enforceability of shrinkwrap terms has historically been somewhat debated by academics (though common commercial practice). The Consumer Rights Act 2015 sets out a consumer's rights and obligations under business-to-consumer supply contracts for digital content (business-to-business being out of scope).

Consumers have statutory rights against the business supplier regarding the quality and title of digital content supplied, whether that be downloaded online or supplied as part of physical goods such as DVDs and CDs.

There are a number of requirements which relate to online terms which govern transactions entered into or services provided over the internet. For example, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 set out details of the information that must be provided by the trader as well as how they must treat any cancellations and returns.

Online, clickwrap and shrinkwrap agreements are generally viewed as enforceable if they are conspicuous and users have an opportunity to review and indicate affirmative assent (eg, check a box).