Chip Sample
Sunday, November 22nd, 2009
Copyright 2009 Chip Cooper I thought I had seen and heard all this in my practice Internet law, until a client referred me an interesting article about a cat named Kitty Simba who crossed a keyboard and clicked on a line, click-through agreement (also known as a "click-wrapped" Agreement "). The article is entitled" The Cat pleasant, "by Ann Loucks, and you can read the computer http://www.ohesso.com/essays/essay006.htm. My client wanted to know if the agreement was enforceable. My answer - cons Simba the cat or its owner, who has hitherto Simba? After a chuckle, I really thought the issue had merit, and my analysis. The Specht Case The most significant on the performance agreements in line Specht v. Netscape Comms. Corp., a 2003 case in which the 2nd Circuit Court of Appeals upheld a decision of the District Court Agreement Online Netscape was not enforceable. In holding that the agreement was unenforceable, the reasoning of the case provided specific guidelines for enforceability. For Specht, developer of Web sites designed Netscape's download page SmartDownload Netscape software with little regard for contract enforceability. Download Page Netscape provided a download button that triggered the download of software SmartDownload. The only reference to a licensing agreement required the user to scroll down to the same Web page that provides a link to the license agreement. By clicking on this link, the user is on another page where it says that the use of the software is governed by a license agreement that required yet another click before the user can read the contract terms. The 2nd Circuit held that the agreement of Netscape has been executed by 3 abnormalities: * The user did not click an I AGREE button to indicate assent * the text on the web page that accompanies download was not clear that the agreement was a precondition for use, and * the absence of "reasonable notice" of the existence of contractual clauses. The Register.com and both Ticketmaster Three more cases - where Register.com and Ticketmaster both cases - when taken together with the Specht case, clearly show that courts are more inclined to apply online agreements in which the user gives his consent purpose. Express consent is usually given by clicking on a button ACCEPT I. Now we return to the facts of the case involving the cat Simba. Is the online contract, "accepted" by Simba enforceable against the owner who created the system developed for Simba to "agree"? We let effectiveness against Simba of our analysis, in deference to the pleasant chat. Owner Simba believes it has agreed to anything. She said: "The download starts and I personally agree to anything. "In essence, it argues that since there is no consent (for it), there is no binding contract. Not so fast, according to Register.com, and both Ticketmaster. These cases also have a lot to the proposition that without consent, assent may be inferred from the evidence that the defendant (i) had knowledge that the use or access was conditioned to legal requirements, and (ii) continued use or access a website, service, or software after the acquisition agree. Conclusion In summary, the line would be enforceable against the owner of Simba if she had knowledge of legal terminology and its use continues after the acquisition notice. More important than the specific facts and outcome of the case involving the cat Simba agreeable are the principles fundamentals that support the almost universal recognition that online agreements, provided they are properly presented, are generally enforceable even in the absence of express consent - an important legal basis on which our economy depends on the Internet. About the Author:
Chip Cooper is a leading intellectual property, software, and Internet attorney who's advised software and online businesses nationwide for 25+ years. Visit Chip's http://www.digicontracts.com site and download his FREE newsletter and Special Reports: "Determine Which Legal Documents Your Website Really Needs", "Draft Your Own Privacy Policy", and "Write Your Own Website Marketing Copy -- Legally".
Article Source: ArticlesBase.com - Is Your Saas Agreement Enforceable -- Even Against Simba, The Agreeable Cat?
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