Some companies have considered putting their alarm contracts on their web
site and making provision for the subscriber to enter into the agreement on
line.  Aside from the technical web design which would create the agreement,
what needs to be done to make the agreement enforceable?
    There are two types of ways to create an agreement on line.
    A "browsewrap agreement" has its terms and conditions on the web site but
does not require the user to actively assent to such terms and conditions.
    A "clickwrap agreement" has the terms and conditions on line and also
requires the user to actively assent by clicking on "I agree" or "I accept"
button, thereby agreeing to the terms and conditions set forth.
    It may be that the browsewrap agreement can be designed to be enforceable,
and it would depend on how conspicuous the terms and conditions are, and
whether the user would essentially be forced to read and understand these
conditions, and know that the user was essentially agreement to them by
continuing to read page to page on the web site, but I suggest that rather than
take chances, you always use the clickwrap agreement.
    Even with clickwrap agreement the terms and conditions have to be
conspicuous, easily readable and understood.  Though you might be able to
design the web site with the terms and conditions on a separate page, I suggest
that the "consent" button be on the same page as the terms, thereby avoiding
any question that the user had ample opportunity to read the agreement terms
and conditions, and by clicking the "consent" button clearly intended to enter
into the agreement.
    You will still be subject to close scrutiny regarding the actual terms and
conditions of the agreement, apart from the mechanism of how the user actually
agreed to the terms.  Thus, no matter how clearly the "consent" was, a court
will not enforce unreasonable terms and conditions.
    For those of you who are interested in this issue, the lead cases around
the country seem to be:  Specht v Netscape, 306 F.3d 17 (NY); Ticketmaster v
Tickets.com, WL 21406289 (CA); American Airlines v FareChase (TX); Comb v
Paypal, 218 F. Supp. 2d 1165 (CA); DeJohn v The TV Corporation, 245 F.Supp. 2d
913 (IL).
    It is recommended that when using the clickwrap agreement that you keep a
record of the users assent and that the user be given an electronic record of
the assent.