Clickwrap Legal Agreements

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(California)

Preventive Measures

Short of retreating from the age of the Internet, there are measures that can be taken to reduce the likelihood of being hauled into court up to three time zones away from your home state. Give thought to the kind of website you use and to its purpose. Some courts have held that the likelihood that jurisdiction can be asserted over an out-of-state business is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.

While courts may not always enforce the practice against individual consumers, businesses can try to protect themselves by posting choice-of-jurisdiction and choice-of-law provisions on their sites. This is the online version of including in written contracts clauses in which parties agree that any dispute will be resolved in the courts, and according to the laws, of a specified state.

While such agreements can be in written form in the product's packaging, it is more effective to use "click wrap" agreements where a potential customer first must click on a button that says "I accept these terms." A federal court has upheld such an agreement, ruling that a couple who sustained personal injuries at a Las Vegas hotel could not sue the hotel in their home state. Although any customer in any state could reserve a room through the hotel's website, the customer first had to agree to have legal disputes settled in a court in Nevada as part of making the online reservation.

Are clickwrap agreements valid and working well in courts?

What current pitfalls are there when using these to proterct yourself from suits other then in your state?

Would you think that the entrance to the entire site would have to be clickwrapped before entering - which is kind of ugly setup for website selling? Instead, could you have all the pages you want about the product freely viewable, but before the user makes the purchase they pass through the clickwrap agreement?

What is a good source to find free public access to legal reviews of such clickwrap cases or any cases for that matter?

Thank you

 

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The law for these types of contracts is not well-sorted yet in most jurisdictions.

What is a good source to find free public access to legal reviews of such clickwrap cases or any cases for that matter?

Google is one, for caselaw, you can try findlaw, PreCYdent, lexisone, there are a few free caselaw databases with limited access.

Or try a law library. Some cities in California have public law libraries.