Are Clickwrap Agreements Enforceable in Missouri?
April 4th, 2023
Are Clickwrap Agreements Enforceable in Missouri?
By: Jennifer Brodersen and Heather Rooney McBride
Electronic agreements are subject to “traditional principles of contract law and focus on whether the plaintiff had reasonable notice of a manifested assent to the online agreement.” Ramsey v. H&R Block, Inc., 2019 WL 2090691, at *3 (W.D. Mo. May 13, 2019) (citing Major v. McCallister, 302 S.W.3d 227, 229 (Mo. App. 2009). The relevant inquiry is whether the user had reasonable notice of the terms and “manifested assent” by clicking a box or button. Id. The type of electronic agreement that includes an affirmative step, like clicking “I agree,” is referred to as a “clickwrap agreement” and is generally enforceable under Missouri law. Id.
To prove a valid and enforceable contract, Missouri law requires offer, acceptance, and consideration. See Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014). “If a party fails to prove one of the elements of a breach of contract action, his claim fails.” Midwest Bankcentre v. Old Republic Title Co. of St. Louis, 247 S.W.3d 116, 128 (Mo. Ct. App. 2008). “The burden of proof rests with the party claiming breach of contract.” Taney Cty. Title & Escrow, LLC v. Jensen, 600 S.W.3d 16, 25 (Mo. Ct. App. 2020); accord Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 784 F.3d 1183, 1189 (8th Cir. 2015) (applying Missouri substantive law and quoting Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo. Ct. App. 2014)).
When resolving a contract dispute, the Court employs a preponderance of the evidence standard of proof. Horning v. White, 314 S.W.3d 381, 385 (Mo. Ct. App. 2010).
Missouri law recognizes electronic modes of acceptance as valid and binding. Major, 302 S.W.3d at 229 (“Courts routinely enforce clickwraps.”). Even where there is no evidence that a party electronically signed the agreement sought to be enforced, Missouri courts and federal courts applying Missouri law have held “click-to-accept” types of sites as enforceable online agreements. See, e.g., Vest v. Cracker Barrel Old Country Store, Inc., 371 F. Supp. 3d 593, 598 (W.D. Mo. 2018); Major, 302 S.W.3d at 229 (“Assent is manifested on clickwrap sites, usually by clicking a box or a button (i.e., ‘I Agree’).”); Burcham, 2009 WL 586513 at *4. Courts look to different types of evidence, as cited below, to determine whether a party accepted an agreement via a website or other electronic means.
Acceptance of an agreement may be shown by a screenshot of or a digital time-stamped report showing Defendant “accepted” the agreement. See, e.g., Franklin v. Cracker Barrel Old Country Store, 4:17-cv-289-JMB, 2017 WL 7691757, at *1–4 (E.D. Mo. Apr. 12, 2017) (finding “acceptance” based on a screenshot of a time-stamped report showing plaintiff launched the “arbitration module” and clicked “mark complete”) (Doc. [10-1] at 11, 13); Vest, 371 F. Supp. 3d at 598 (finding employer’s online training system indicated Plaintiff marked “complete” after opening the module thereby indicating her acceptance); Strain v. Murphy Oil USA, Inc., 6:15-cv-3245-MDH, 2016 WL 540810, at *3-4 (W.D. Mo. Feb. 9, 2016) (finding “acceptance” where evidence showed plaintiff checked a box indicating she completed an online signature appearing under her name was a “confirmation” she was subject to agreement).
Acceptance of an agreement may also be shown by records indicating an individual, using an identification number and unique password, accessed the email and webpage pertaining to the agreement and clicked the “review completed” or “mark complete” button on a certain date. Vest, 371 F. Supp. 3d at 596–97 (noting defendant submitted records showing plaintiff, using her employee identification number and unique password, launched the “arbitration module” and clicked “mark complete” on a certain date); Karzon, 2014 WL 51331 at *1–2 (stating defendant’s records established plaintiff, with his “unique username and password,” accessed the email and webpage pertaining to the agreement and clicked the “review completed” button, and thus, plaintiff accepted the agreement).
Acceptance may also be shown by records showing an individual was required to use a unique username, identification number, and/or password to “accept” the agreement itself, See, e.g., Strain, 2016 WL 540810 at *1 (finding “acceptance” when to electronically sign the agreement a party must enter 4 fields—their name, social security number, an acknowledgment they have read the agreement and the date).
Under Missouri law, one will be bound by an agreement if he was “on notice of contract terms available on the internet,” even if he did not read the agreement or click the link. Burcham, 2009 WL 586513 at *2 (applying Missouri law); cf. Franklin, 2017 WL 7691757, at *6 (“Under Missouri law, ‘a person who has an opportunity to read a document but signs it without doing so is held to have knowledge of the document’s contents, absent a showing of fraud.’ ”) (quoting Midwest Printing, Inc. v. AM Int’l, Inc., 108 F.3d 168, 170 (8th Cir. 1997)).
“Where the website contains an explicit textual notice … of the user’s intent to be bound,” courts typically enforce such agreements. Hennessey, 2021 WL 5415031 at *4; cf. Foster, 15 F.4th at 864 (explaining “reasonably conspicuous” language puts website user on notice). In the absence of evidence that the website user had actual knowledge of the agreement, the Eighth Circuit has made clear that evidence of the clickwrap itself, not just the agreement, is necessary to determine whether the website puts a user on reasonable notice of the terms of the contract. See Foster, 15 F.4th at 864; see also Margulis v. HomeAdvisor, Inc., 4:19-cv-00226-SRC, 2020 WL 4673783, at *2 (E.D. Mo. Aug. 12, 2020) (finding website user had constructive notice of terms where hyperlink to Terms and Conditions was conspicuously displayed in blue font); Hennessey, 2021 WL 5415031 at *13–14 (concluding webpage design “buried” the relevant language, failing to create even constructive notice).
If you have questions about click-wrap agreements, or need assistance in creating a legally enforceable website for your business’ product or service, please contact the business attorneys at Rooney Mcbride & Smith, LLC for a consultation.