On-line transaction terms and conditions are applied and used in a number of different methods. The most common for transactions negotiated between commercial entities is for scanned copies of a document to be electronically signed by applying an electronic signature to a digital page. Alternatively, so-called ‘click-wrap’ agreements simply require a customer to click on the electronic screen to confirm acceptance of terms. Finally on-line terms are often found in general website pages headed ‘Website Terms and Conditions’ and purport to govern all actions undertaken through the website. Electronic signatures are now well recognised to be binding – See Part [16.9] (Signatures and Electronic Communications). However, other than in relation to real property, most contracts do not require a signature
The usual rules of contract formation apply, and the party seeking to enforce the contract will need to demonstrate that the terms relied on form part of a contract agreed by both parties. Where there is an exchange of digitally signed documents, this is less likely to be in dispute. The acceptance of a contract is said to be by simply clicking to apply a ‘tick’ on the screen, as in a ‘click wrap’ contract, is also valid if proven. The identity of the person who clicked on the screen will need to be proven through either electronic records or sufficient evidence that ever user needed to go through that screen at the time of contracting. While sending further documentation after contracting is common, such terms are of no effect if different from those displayed on-screen at the time.
Alternatively, there may be a multiple step process where electronic documents are sent after the point of initial inquiry, as was the case in Carnival v Karpik. There the relevant terms were attached to electronic documents sent after a booking was made, but before the contract was subsequently accepted.