- prohibited conduct;
- ownership of intellectual property (IP);
- disclaimers; and
Notice and Acceptance
- notice; and
First, whether a contract is enforceable depends on whether you provide reasonable notice to the user before the contract was formed. Secondly, ask yourself, did the other party accept the contract, and if so, how did they indicate this?
The most common way of entering a contract is through a signature. Generally, by signing a contract, you agreed to all its terms. E-Signatures are growing in popularity but are usually for digital documents such as PDFs. The more common way of representing your acceptance to online terms is by clicking the box that says “I Agree”.
Browse Wrap Agreements and Click Wrap Agreements
Browse Wrap Agreements
Does this mean that you cannot enforce a browse wrap agreement? There is yet to be an Australian landmark case on this issue, so we do not have an answer. However, the threshold to enforce such an agreement would be high.
Click Wrap Agreements
Click wrap agreements are usually in the form of a dialogue box which the user has to scroll through. There is also an “I Agree” box which the user has to click before they can proceed.
In terms of notice, click wrap agreements usually constitute reasonably notice because they normally pop up automatically. Ticking “I Agree” can be a signature, and some click wraps do not allow you to click “I Agree” until you have scrolled to the bottom of the terms.
The Uber Case
However, Uber did not require you to click the link to proceed. And even if you did click the link, you had to click two more links to get to the terms. Once you finally got to the terms, they were confusing and unclear. The terms were full of legal jargon.
The judge ruled against Uber, holding that while Uber gave notice, it was not ‘reasonable notice’. Uber successfully appealed that decision, with the judge saying that it is the user’s responsibility to read the terms.
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