This article has been written by Chaitali Bagai pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Anahita Arya (Senior Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
Table of Contents
Introduction
- Did you know that even without you realising you might have signed a contract with a big company like Amazon while sitting on your recliner?
- Have you ever accepted the terms and conditions before using an app?
- Have you clicked on “I agree” without knowing what the contract is all about?
- Pandemic has led to many innovations in the tech world and new business models have also been developed during this period. Everything is now just a click away, you want to order food- Zomato, order electronics- Amazon, order groceries- Grofers. Have you ever wondered how they sign contracts with you? Signing contracts is also a click away these days.
Let us read further to understand what these various kinds of contracts are and the differences between them.
E-contracts
E-contracts are the cousins of traditional contracts who went abroad and came back with the new electronics and a fancy name. Electronic contracts are contracts in the digital version and are in demand these days. E-contracts are very similar to regular contracts, the only difference is that they take place through a digital mode of communication that is online. E-contracts have eaten the job of the middlemen, now sellers reach out to the customers directly. The middlemen now are the computer programs that connect the seller with an electronic agent i.e. the app and the buyer also with an electronic agent. Basically, it creates a platform for the buyer and seller to meet.
Are E-contracts binding and valid?
In India, The Indian Contract Act, 1872, Section 10 states that “All agreements are contracts if they are made with free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”
Also, Section 10(A) of The Information Technology Act 2000 states that “Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, that such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”
According to the Indian Evidence Act, 1882, Electronic signatures are also treated as proof of signature and Digital Signature Certificates are generated when a document is electronically signed and this certificate is also legally valid and binding according to the IT Act, 2000.
In India, contracts are governed by The Indian Contract Act, 1872, and electronic contracts must be valid within the interpretation of the law. The essentials of the Electronic Contracts are-
- Offer
- Acceptance
- Lawful consideration
- Lawful object
- Competent parties to contract
- Free consent
- Certainty of terms
E-contracts are a substitute for expensive and inefficient on paper documentation and are preferred to avoid a lengthy process. On the other hand, electronic contracts are efficient to use and the turnaround time is much higher than lengthy paperwork. In fact, E-signatures also save a lot of time and effort. So, E-contracts are enforceable by law and legally valid even if they are digitally signed and executed. However, it is different in the case of Click-wrap contracts.
Types of E-contracts
There are different types of Electronic Contracts to name a few Shrink-wrap contracts, Click-wrap contracts, Browse-wrap contracts, Source-code Escrow contracts, Software development and licensing agreements, and many more. Here are three different types of contracts-
1. Shrink Wrap Contracts-
The name of this contract came from the shrink wrap packaging of the CD-ROMs in which software used to be distributed. Shrink-wrap contracts are the licensing agreements for different software. These contacts are the license agreements or boilerplate or terms and conditions which are wrapped with the product itself. When a customer uses the product, it means that he has accepted the contract. Shrinkwrap is basically the plastic wrapping done on the cover of the product. Shrink wrap is mostly used by IT companies. The most interesting feature of this contract is that acceptance of this contract can be reversed by returning the product. Also, these days licensing agreements are not delivered with the product instead it shows up before installing the software.
2. Click Wrap Contracts-
Have you seen the long texts, detailed terms and conditions for using an app or software that nobody reads? Yes, those are the Click Wrap Contracts. As the name suggests, the party is just a click away from signing this contract. They just need to click a button or check a box to accept the contract. Basically, the user is forced to sign up the contract otherwise he would not be able to proceed and therefore they are not negotiable at all. There are some legal issues related that will be covered later.
3. Browse Wrap Contract-
Have you seen these lines which go like “By continuing your use of these services, you agree to the terms and conditions” or “By signing up I agree to the terms of use”?
Browse Wrap contracts are seen at the bottom of the webpage and the acceptance is assumed if the customer is using the application. These contracts are commonly seen in websites and even in some mobile apps or software applications. They can also be seen through a hyperlink.
Critical analysis
Now let’s talk about the enforceability of these contracts with the help of a few US case laws. In general, the validity of Click Wrap contracts is more than the validity of the Browse Wrap Agreements in the courts.
In the case of Long V. Pride Commerce Inc, the court held that the Browse Wrap contract will only be enforceable if the consumer has read and is aware of all the terms mentioned in the contracts. The conclusion of this case was that these contracts are only enforceable if a reasonably prudent man would know the terms of the contract which will depend on the placement and the design of the links.
In another case of Nguyen V. Barnes and Noble Inc., the court ruled that the contract would be enforceable on the basis of proximity and conspicuousness of the link. In the case of Re Zappos.com Inc., the court held that these contracts cannot be enforced because the font, color and design of the links of these contracts is similar to the other links. Therefore, consumers were not able to distinguish.
There are some guidelines to design Browse Wrap Contract links established by the court;
- The visibility of the links should be on the first page not on the sub-pages and should be placed at such a place where it is immediately visible.
- Link should have a larger font with different font style and color. This should be done to differentiate it from other links.
- An additional notice should pop-up as the link is not enough
Understanding the difference between the three
Click Wrap contracts and Shrink Wrap contracts are unilateral and are presented as a fixed contract whereas Browse Wrap contracts are quite different because they do not force the consumer to accept the contract rather the acceptance is assumed while using the website. Contracts like Click Wrap and Browse Wrap are usually used by websites that want to make it mandatory for your consumers to agree with their terms and conditions. The only difference between the two is the manner in which they mandate it. Browse Wrap does not require consent but Click Wrap does make consumers click on the “I agree” button. Browse Wrap, Click Wrap and Shrink Wrap Contracts are the ways to get into contracts with the consumers online. Browse Wrap is the oldest form and standard form for agreement as it was simple and covered all the relevant information. Shrink Wrap was found in the software industry only but in a different form. The Shrink Wrap contract has the agreement inside the packaging and opening of the package indicates the consumer’s acceptance towards the same. Browse Wrap contracts have the terms and conditions and privacy policy written on the website highlighted with the link. The consumer has agreed to this contract by default. And usually, the line says “Your use of our site constitutes your acceptance of these Terms of Use and your agreement to be bound by them”. So, if you don’t agree with the terms and conditions, just don’t use the website. On the other hand, the requirements of a Click Wrap contract are more than of a Shrink Wrap and Browse Wrap. The two main components that make a huge difference are that Firstly, Click Wrap contracts provide a link but they also provide a notice which is a summary of all the legal terms and conditions. Secondly, they ask for actionable consent through a pop-up window like a “I agree” button or a check box. If a website or an app uses this contract, it means that they require an express consent from the consumer before proceeding further. The consumer also has an option to decline the terms and conditions by clicking on the “Cancel” button.
Conclusion
The Indian Contract Act, 1872 governs all the contracts in India but all the Electronic contracts are governed by the Information Technology Act, 2000. Mostly all the electronic contracts are presented to the consumers in the form of Click Wrap and Browse Wrap. The word-wrap for both the contracts is derived from the Shrink Wrap contracts as the terms and conditions were shrunk and wrapped in the packaging of the product. But Click Wrap and Browse Wrap are both used in the digital form only. Shrink Wrap can be used in both digital and physical. In the past, the owner of the website had a choice between Click Wrap and Browse Wrap both were treated equally legally like the Privacy policy and Terms and conditions but now the times have changed. At the end, I would like to highlight that for terms and conditions one can use the Browse Wrap contract but the legal documents like Privacy policy has to be with a Click Wrap contract so that there is an expressed consent.
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