I. Forming Contracts Online
Disputes arising from contracts entered into online concern the terms and assent to those terms.
A. Online Offers
Terms should be conspicuous and clearly spelled out. On a Web site, this can be done with a link to a separate page that contains the details. The text lists subjects that might be covered, including remedies, dispute settlement, payment, taxes, refund and return policies, disclaimers, and privacy policies. An online offer should also include a mechanism by which an offeree can affirmatively indicate assent (such as an “I agree” box to click on).
1. Click-On Agreements
A click-on agreement occurs when a buyer, completing a transaction on a computer, is required to indicate his or her assent to be bound by the terms of an offer by clicking on a button that says, for example, “I agree.” The terms may appear on a Web site through which a buyer is obtaining goods or services, or they may appear on a computer screen when software is loaded.
2. Shrink-wrap Agreements
A shrink-wrap agreement is an agreement whose terms are expressed inside a box in which computer hardware or software is packaged. In most cases, the agreement is not between a seller and a buyer, but between a manufacturer and the user of the product. The terms generally concern warranties, remedies, and other issues associated with the use of the product. • Courts often enforce shrink-wrap agreements, reasoning that the seller proposed an offer that the buyer accepted after an opportunity to read the terms. Also, it is more practical to enclose the full terms of a sale in a box. • If a court finds that the buyer learned of the shrink-wrap terms after the parties entered into a contract, the court might conclude that those terms were proposals for additional terms, which were not part of the contract unless the buyer expressly agreed to them.