Saturday, April 10, 2010

Online Contracting

This week we will cover the two related issues of online contracting and legal issues which arise when creating a website.

Online contracting

How do you determine when an electronic communication is sent/received? What are the possibilities?

Electronic Transactions Act - Queensland / Commonwealth
Vienna Convention on the Sale of Goods (incorporated into Australia law)

Guidelines for operating websites

Australian Treasury Guidelines for e-commerce


Terms of use

What are the common clauses / differences between these Terms of Use?


Clickwrap / Shrinkwrap agreements

Sample

What is the difference between a clickwrap and a shrinkwrap license?

What can you do to try and make a clickwrap agreement enforceable?

How will unfair terms legislation affect these agreements?


List of cases


Enforcing Click Wrap Agreements


2 comments:

Louise said...

The shrinkwrap and clickwrap licence agreements are very powerful documents in that the end user has absolutely no bargaining power to negotiate the terms of the agreement or even the price! You are purely at the mercy of the large software companies in the event of a dispute. I would say only 5-10% of people actually read the full terms and conditions of these licence agreements before clicking "I accept" and some people would think there was no need to read the terms since they have no power to amend or negotiate the terms. So if you haven't read the terms, have you really "agreed" to the terms and conditions? I would personally like to see these licence software companies doing a quick one page summary of the essential terms (ie no reselling/reuse etc without consent, jurisdiction clause, dispute resolution clause etc etc) similar to the format of Creative Commons licences - http://creativecommons.org/licenses/by/2.5/au/ -

Hamid said...

Louise,
I agree with you that only a small percentage of people read the terms and conditions before clicking “I accept”. Even if you do read the contract and click “I accept”, the licensors are still able to amend the terms of the contracts themselves by changing the version of the contract on the website. Often the changes are quite substantial.
Corones and Clapperton in their article titled ‘Unfair terms in clickwrap and other electronic contracts’ say that clickwrap, shrinkwrap and most recently browswrap and other electronic contracts “are presented on a "take it or leave it" basis, with no opportunity for the negotiation of terms. He goes on to say that both federal and state existing laws fail to protect consumers and suggests legislative intervention. I recommend it as a very useful article to read in order to understand further electronic contracts.


(1) Dale Clapperton and Stephen Corones
Australian Business Law Review > Volume 35 > Part 3 > Unfair terms in clickwrap and other electronic contracts