Internet Hotel Reservations: Recent Changes and Trends in the Enforcement of Click Wrap and Browse Wrap “Terms and Conditions/Terms of Use”

Abstract

“Click wrap” and “browse wrap” agreements attempt to add additional terms and conditions to the online hotel reservation contract made by a guest. If the terms are enforced by a court, they will provide some advantages to the hotel in the event of litigation involving the guest. Provisions might include choice of forum, choice of law, mandatory arbitration, limitation on types of damages, limitation of class actions, waiver of liability, liquidated damages, and restrictions on legal fees; and they may become part of the Internet-based contract when a guest reserves a room. Before enforcing the additional terms, however, a court must first determine that mutual assent to the additional provisions exists between the parties. Click wrap agreements will be routinely enforced by the courts, as the guest is required to click an icon that states, “I agree to the additional terms and conditions.” In a browse wrap agreement, the hotel Internet site has a link, usually found at the bottom of the webpage and in small print, that is accessible to the guest by clicking the link. The guest may or may not choose to view the additional terms and conditions prior to making the reservation, and the guest may not even be aware that the additional terms and conditions exist. Courts will only enforce terms and conditions of a browse wrap agreement if they are able to determine that mutual assent is present and that the guest is aware or should have been aware of the additional terms.