Introduction
Most courts find E-Contracts involve
basic principles of contract law, applied in the online context.
Online
Contract Formation
Online Offers should
include:
o
Remedies
for Buyer.
o
Statute
of Limitations.
o
What
constitutes Buyer’s acceptance.
o
Method
of Payment.
o
Seller’s
Refund and Return Policies.
o
Disclaimers
of Liability.
o
How
Seller will Use Buyer’s Information (Privacy).
Dispute Settlement
Provisions.
o Choice of Law.
o Choice of Forum.
o E-Bay uses online
dispute resolution.
Displaying the Offer
(via hyperlink).
How Offer Will Be Accepted.
o
Amazon.com--Checkout.
o
“I
Accept” Button to Click.
Online
Acceptances
Click-on Agreements.
Shrink-Wrap Agreements.
o
Contract
terms are inside the box.
o
Party
opening box agrees to terms by keeping merchandise.
Enforceable Contract Terms. (UCC
2-204).
Additional Terms.
Case 18.1: Klocek v. Gateway Inc. (2000).
Click-On Agreements occur
when Buyer “checks out” or clicks on “I Accept” button on Seller’s website or
when software is installed.
Case 18.2: i.LAN Systems Inc. v. NetScout Service
Level Corp. (2002).
Browse-Wrap Terms.
Case 18.3: Specht v.
Netscape Communications (2002).
E-Signatures
E-Signature Technologies.
o
Asymmetric
Cryptosystem.
o
Cyber
Notary.
State Law Governing E-Signatures.
o
Uniform
Electronic Transactions Act (1999).
Federal Law.
o E-SIGN (2000) gives
e-signatures and e-documents legal force.
Partnering
Agreements
Sellers and Buyers agree as to
protocols to create online agreements.
Useful for electronic inventory (Just
in Time) ordering of parts and supplies.
UETA
Purpose is to remove barriers to
forming electronic commerce.
E-Signature is “electronic sound,
symbol or process…associated with a record and… adopted by a person with intent
to sign the record.”
UETA applies only to
e-records and e-signatures relating to a
transaction.
UETA
and E-SIGN
E-SIGN explicitly refers to UETA.
Provides that E-SIGN is pre-empted by
state passing of UETA.
But state law must conform to minimum
E-SIGN procedures.
Highlights
of UETA
Parties must agree to Conduct
Transactions Electronically.
o
A
party can “opt out” of UETA terms.
Attribution—process to ensure person
sending an electronic record is in fact the real person.
Electronic Errors.
“E-Mailbox” Rules.
o
Dispatched
when leaves control of sender.
o
Received
when enters recipient’s processing system.
UCITA
Applies to computer information.
Software is not a “good” but
intellectual property.
Software is licensed, not sold;
License contract gives Buyer
(Licensee) only specific rights.
Attribution and Authentication.
Mass Market Licenses.
