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Clickwrap Agreements

As you install software, you're usually asked to click an "I Accept" button. If you're like most people, you click it without reading what you're accepting. Another time you're likely to see this "I Accept" button is when you're registering to use a website. Ever read those? Let's assume that you don't read them (I admit it, I rarely read them). Ever wonder if what you didn't read was enforceable against you like a "real" contract?

If you ever read these things, you might be amazed at what they say. Translated into plain English (a fine art untaught during law school), you will typically find statements like, "No matter what we do and no matter how bad it is, we owe you nothing. Further, we do not warrant the information on this site. While we would like you to believe it's accurate, tough luck if it isn't."

Now, you may be thinking that I'm exaggerating. So, here's what CNN.com actually says in its agreement.

"Subscriber expressly agrees that use of CNN interactive is at subscriber's sole risk. Neither CNN ... nor any ... third party content providers ... warrant that CNN interactive will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of CNN interactive, or as to the accuracy, reliability or content of any information, service, or merchandise provided through CNN interactive." I think I caught the essence in my translation.

Another typical provision says something like, "If you ever sue us, you must sue us in the court farthest from your home."

All right, on that one I embellished. In real life, it's more like, "If you sue us, you must sue us in our home state, not yours." The result may just be the same depending upon where they're located.

Enforceable?

I led this column with the question of whether a click "I Accept" created an enforceable agreement. When I started writing about technology law in 1996, the answer was a big "maybe." Today, it's a relatively solid "yes."

If you wonder why I qualified "yes" with "relatively," it's because if this were a law review article, it would take me several pages of discussion filled with qualifications and citations before I could reach the conclusion. Since I don't want to bore you with the details, and so I don't have to read e-mail from other lawyers pointing out that almost (notice yet another qualifier) nothing is just a "yes" in law, I say "relatively" and we're all happy.

In some ways, the tougher question involves websites that don't require you to click "I Accept," but rather just have a link at the bottom of the website that says something like "Terms and Conditions of Website Use." Here the idea is that your mere use of the site is deemed your assent to the agreement the website has posted. Here the cases are mixed. Some courts are quick to enforce these too, while others want things like proof that the web surfer really knew the terms of the agreement and at least impliedly consented. That's a tough burden when we're dealing with Joe Websurfer.

Another interesting issue is unusual terms. For example (and I'll make my point by using an absurd example), let's say buried in the fine print of the agreement is a provision requiring you to sell them your car for $100. I think that a court wouldn't find it difficult to conclude that this "unusual" term is not enforceable while the rest of the agreement is binding.

Your Company's Website

If your company has a website, you absolutely must have an agreement governing your website's use posted. I think that it's a simple equation. We live in a litigious world, plus nobody actually negotiates the posted agreement, plus few people read the agreement, plus you will lose few, if any, customers by posting a one-sided agreement -equals - you must post a one-sided agreement.

If you don't, you lose the opportunity to control your own fate. Why let the law govern your website when you can have a contract your lawyer wrote govern it? Envision the ole Scales of Justice. Now imagine the law written by the legislature on one side and a contract written by your tech lawyer on the other. Which one do you want to govern your site? This should be a no-brainer.

Consider that your posted agreement could limit your liability to some nominal amount if somebody sues you. Further, you could require any lawsuit to be filed in your home court. Better yet, your agreement could require arbitration, which is excellent protection from class actions, since arbitration is about one on one dispute resolution, not large classes.

My recommendations are simple. You should always have an agreement on your website. You should require a click "I Accept." If you don't want to do that, then make sure that your site has a conspicuous notice stating that use of the site is governed by an agreement and make the link to the agreement as obvious as you can.



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