Search: Home Bugtraq Vulnerabilities Mailing Lists Jobs Tools Beta Programs
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.

Comments Mode:
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. So it's not only reasonable but routine for contracts to be partially valid/enforceable if they're not fully enforceable/valid.

Second, EULAs aren't conventional contracts. A standard contract involves a negotiation between the parties over the terms. EULAs allow for no negotiation, the user has to take them as-is or leave them. They're what's called a contract of adhesion. The law applies different standards to a contract of adhesion to compensate for the fact that one party has no say over the terms. The FTC is merely arguing that certain terms of the EULA in question fall into the class of unreasonable and/or unconscionable terms that aren't valid in a contract of adhesion.

[ reply ]

Link to this comment: http://www.securityfocus.com/comments/columns/365/32592#32592
Re: The click-wrap conundrum 2005-10-24
Mark Rasch (1 replies)
Re: Re: The click-wrap conundrum 2005-10-25
Anonymous
Cigarettes 2005-10-24
Theuns
The click-wrap conundrum 2005-10-25
Anonymous
The click-wrap conundrum 2005-10-25
Dan S. (1 replies)
Understanding 2005-11-01
Sean







 

Privacy Statement
Copyright 2009, SecurityFocus