Enforcement of Contractual Terms in Clickwrap Agreements
Citation | Vol. 3 No. 3 |
Publication year | 2007 |
Abstract
In three recent cases, courts have invalidated portions of consumer clickwrap agreements containing either forum selection or binding arbitration clauses. In the first case, the Washington State Court of Appeals invalidated a forum selection clause found in a clickwrap agreement because the clause was contrary to state consumer protection policies. In the second case, the California Court of Appeals rejected a clickwrap agreement calling for binding arbitration in a specified forum when the plaintiff sought to bring a class action claim. Finally, the U.S. Court of Appeals for the Fifth Circuit recently declared a binding arbitration clause because it was unconscionable. Although these cases address a relatively new form of contracting known as "clickwrap agreements," the essential issue in each case was not new. These cases suggest that courts are willing to accept the validity of clickwrap agreements in general, but have invalidated specific clauses based on traditional contract doctrines such as unconscionability and public policy. This Article examines these recent cases in light of existing precedent concerning the enforceability of clickwrap agreements.
Introduction
[1] Three recently decided cases appear to question the enforceability of consumer clickwrap agreements - electronic boilerplate contracts requiring electronic consent from the consumer - containing forum selection and binding arbitration clauses. In late 2005, the Washington Court of Appeals decided
[2] Although several courts refused to enforce terms contained in clickwrap agreements, these cases do not call into question the enforceability of clickwrap agreements. Rather, they illustrate the fact that courts will look at the actual terms of such agreements and may invalidate specific terms based on traditional contract concepts and their application to a new generation of contracts.Clickwrap Agreements in Context
Clickwrap Agreements in Context
[3] The term "clickwrap" refers to electronic contracts requiring users to express their consent by clicking on an "I accept" button, or an equivalent, before completing their purchase, accessing the material they want to download or installing software they have purchased. [fn5] Clickwrap agreements are standardized contracts whereby consumers assent to a boilerplate set of terms and conditions. Even if consumers take the time to read the agreement, they must assent to the terms if they want to consummate a particular transaction online, such as downloading software, or purchasing goods or services. [fn6] As with traditional contracts of adhesion, clickwrap contracts provide an efficient way for those selling downloadable products or services to provide online contracts to their customers.
[4] The first case in which a court upheld the validity of clickwrap agreements was
[5] Another court was more explicit in its reasoning relating to the validity of clickwrap agreements. In
[6] In addition to acceptance among courts, state and federal legislation gives statutory support to these new contract forms. This movement is evidenced in the federal Electronic Signatures in Global and National Commerce Act ("E-Sign") as well as in the Uniform Electronic Transaction Act...
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