The content and shape of clickwrap chords are very different. Most clickwrap agreements require the end user to show consent by clicking the “OK” or “Accept” button in a dialog box or pop-up window. A user indicates the refusal by clicking Cancel or closing the window. After the refusal, the user cannot use or purchase the product or service. In fact, such a take-it or leave-it contract is called a “liability contract, which is a contract that does not have the power to negotiate and forces one party to be favored over the other.” The format and content of Clickwrap agreements vary by provider. However, most clickwrap agreements require the consent of end-users by clicking the “OK,” “I agree” button in a pop-up window or in a dialog box. The user can refuse the agreement by clicking the Cancel button or closing the window. After the refusal, the user cannot use the service or the product. A Clickwrap agreement is also called a Clickwrap license or Clickwrough agreement. Unfortunately, companies that offer goods and services electronically via the internet cannot expect all their “Click Through” contractual terms to be applied everywhere. However, forecasts and case-by-case adjustments allow these firms to significantly increase their chances of enforcing most of the terms of these agreements in most major markets.
Potential problems arise when a company, not an individual, makes a click-through agreement. In this case, the seller must ensure that the person who clicks on the acceptance has the right to accept on behalf of the company. Of particular concern is the ability of a worker to engage the employer in non-competitive agreements and other contractual provisions for goods and services other than the software product that is then downloaded, installed or used by that employee. On February 18, Ken Slade and Jorge Contreras de Hale and Dorr LLP spoke with massachusetts Software and The Internet Council on “Creating Enforceable Click Through-User Agreements, in domestically and International.” Ken and Jorge reviewed the Applicability of These Agreements Act (and their previous Shrink Wrap agreements), recommended a four-step strategy to improve enforcement in the United States, examined various special international considerations regarding the applicability of these agreements, and proposed a three-step process to maximize the chances of imposing “click through” agreements in a large number of countries.