Transcript Click Wrap Contracts

Browsewrap Contracts
Richard Warner
Terms Of Use Contracts
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Web sites typically contain an agreement
defining the terms on which the web site may
be used.
In many cases, no affirmative act of assent is
requested or required with respect to these
agreements.
First Restaurant Analogy
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You walk into a restaurant and order dinner. When
the bill is presented it includes a service charge of
50%. When you ask what is going on, the waiter
produces a contract which says in part, “All guests
agree to pay a service charge of 50%.” The contract
was posted in the kitchen.
No Offer And Acceptance
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You are not obligated to pay the charge.
Why? No offer and acceptance.
A communication is an offer if it is a (1)
manifestation of willingness to enter into a
bargain (2) so made as to justify the recipient
of the communication in understanding that
his or her assent will conclude the bargain.
There is no manifestation of a willingness to
enter into a bargain
Second Restaurant Analogy
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The contract is posted on the door of the restaurant.
But the contract is very small and easy to overlook.
There may been a offer by the restaurant.
But you did not accept.
You were unaware, and could not reasonably be
expected to be aware, of the offer.
Specht v. Netscape
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The issue is the enforceability of an arbitration
clause in the license agreement governing the use
of Netscape’s SmartDownload program.
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The program that allows “users to download files from the
Internet without losing their interim progress when they
pause to engage in some other task, or if their Internet
connection is severed.”
The question is whether those who download the
software ever really agree to the terms of the
license.
Relevant Facts
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“By clicking on the box, a visitor initiates the
download. The sole reference on this page to the
License Agreement appears in text that is visible
only if a visitor scrolls down through the page to the
next screen [emphasis added].
“If a visitor does so, he or she sees: “Please review
and agree to the terms of the Netscape
SmartDownload software license agreement before
downloading and using the software.”
“Visitors are not required affirmatively to indicate
their assent to the License Agreement, or even to
view the license agreement, before proceeding with
a download of the software.”
The Court’s Conclusion
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“[T]he individual obtaining SmartDownload is
not made aware that he is entering into a
contract.”
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The court views the situation like the second
restaurant analogy.
The court offers its own analogy: “From the user’s
vantage point, SmartDownload could be
analogized to a free neighborhood newspaper,
readily obtained from a sidewalk box or
supermarket counter without any exchange with a
seller or vender. It is there for the taking.”
Evolving Custom And Practice
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Experienced web users know that web sites
often contain terms of use contracts behind
hyperlinks located at the bottom of the home
page or some other relevant page.
An established custom and practice about the
existence and placement of these hyperlinks
will make it more and more difficult for web
site visitors to argue that they were unaware
that they were being invited to enter into a
contractual relationship.