Every time we download or install an product we go through the same steps. We click “Next” over and over until we see the bar pop up showing how long it will take to install the product and we can leave to do something more productive. Yet during those initial clicks, there is one that always stand out as different. A text box will pop up with the words “User License Agreement” somewhere on the front and we can scroll down to read what the document says. We also have to click on a button or check a box that says something to the effect of “I agree to the Terms and Conditions.” Of course we don’t read what it says. No one does. We’ve never had a problem with it and we assume it is just useless legal jargon to limit liability in the case of a bear attack or something. Unfortunately, by clicking “I agree” we have likely entered into a contract. The question now is what have we agreed to.
But how can they do this? Well our friends in the 7th Circuit established “Clickwrap Agreements” as a valid form of contracts. In ProCD v. Zeidenberg, the court held that such agreements, though unilaterally made, are valid because the purchaser can always return the item or choose not to download it. The fact that the person did not read the terms is his own fault. You always have the duty to read the terms of a contract before agreeing to it. Since he accepted an offer that he had the right and ability to refuse, the court found that clickwrap agreements were valid contracts.
Every Wednesday, we hope to cover a User License Agreement that a vast amount of people have likely agreed to and summarize what is in the terms.
So be warned: just because you don’t know what the agreement says, that doesn’t mean you won’t be bound by it.
[For more in-depth discussion, check out: The Clicks That Bind: Ways Users “Agree to Online Terms of Service]
Disclaimer: This information is not for use as legal advice, in litigation, or in any other way that concerns the practice of law. Any legal questions should be directed to a practicing attorney in your area. This information is for news and opinion purposes only and is intended to promote discussion and further research. This is not to be relied on for legal purposes.