The click-wrap conundrum

The click-wrap conundrum
Mark Rasch, 2005-10-24

Suppose you are setting up a website to deliver the latest software, product, or service. Before the site goes live, you go to your lawyer (of course you do, don't you?) who reviews your online privacy policy, your online security policy, and your policy regarding collecting information from or about children. Your lawyer reviews the site overall for anything that might be considered or interpreted a fraudulent or deceptive practice. Of course, if it were up to lawyers, the only content on the Internet would be in the form of disclaimers.

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The click-wrap conundrum 2005-10-24
Todd Knarr (1 replies)

Two points. First, contracts are rarely all or nothing as you describe. Companies routinely include severability clauses in contracts specifically to avoid the "enforceable or not as a single unit" situation. No company wants the entire contract voided because one sentence was found to be invalid. S...

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Re: The click-wrap conundrum 2005-10-24
Mark Rasch (1 replies)

wo points. First, contracts are rarely all or nothing as you describe. Companies routinely include severability clauses in contracts specifically to avoid the "enforceable or not as a single unit" situation. No company wants the entire contract voided because one sentence was found to be invalid. So...

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Re: Re: The click-wrap conundrum 2005-10-25
Anonymous

"Many jurisdictions will NOT parse a contract. How could they know which portions the parties would have agreed to if other portions are deemed unenforceable?"

Precisely. Which is why almost all contracts, and all EULAs that I've seen, include an explicit severability clause. It's intended specif...

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Cigarettes 2005-10-24
Theuns

They're poison, and socially questionable. In spite of this, people willingly pay real money to buy boxes of them.

On the other hand, they're required to have quite vivid warnings as to the effects of the content - far less subtle than a 'poison' entry in the ingredients list.

Is this softw...

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The click-wrap conundrum 2005-10-25
Anonymous

I must say I agree with Todd Knarr. Normal contracts involvve both parties EULAs don't seem to do that which in my opinion make them more likly to damage one party over another. I must say I stand behind the FTC on this one....

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The click-wrap conundrum 2005-10-25
Dan S. (1 replies)

In this particular case, the terms do seem so egregious that they shouldn't be enforceable. But that is irrelevant to the general question of so-called "click-wrap" agreements.

A contract is supposed yo be an agreement between two parties. Traditionally, a contract needed to be "signed, sealed, a...

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Re: The click-wrap conundrum 2005-11-04
Roger

Interesting points Dan.

I have also often doubted that click-wrapping even indicates assent. There are two problems. The first is that in most cases, I've already paid for the software before I even get a chance to view the EULA. Now IANAL but I do recall from a civics class long ago that conditi...

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Understanding 2005-11-01
Sean

I look at software like I look at food. You tell me that it contains aspartame or brominated vegetable oil so what. When you state NutraSweet or a vegetable oil that has been rinsed with bromine (you all should look that up) I get worried. Maybe the EULA needs to be scrapped with an "FDA" approve...

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The click-wrap conundrum and limitations 2005-11-02
Kevin Wall

Two questions:
1) What happens if the party agreeing to this
particular EULA happened to be my 12yr old
son? Is that still legally binding?

2) Regarding the "NO WARRANTY" clauses that
almost all EULAs have that said software is
distributed on "AS IS" BASIS, yada, yada...
at l...

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