Exam 2: Electronic Contracts

Electronic contract

A contract formed electronically that still requires agreement, consideration, capacity, and legality.

License

Permission to use a product or intellectual property subject to stated conditions.

Clickwrap agreement

An agreement accepted through an affirmative action such as clicking an I agree box.

Clickwrap enforceability

An affirmative click ordinarily demonstrates assent when the terms are reasonably presented and accessible.

Shrinkwrap agreement

An agreement containing terms inside product packaging that state keeping or using the product constitutes acceptance.

Shrinkwrap enforceability

Courts differ; some enforce the terms, while others enforce only terms included in the offer originally accepted.

Browsewrap terms

Website terms claiming that use of the site constitutes agreement without requiring an affirmative acceptance click.

Browsewrap majority rule stated in PPT 15

Browsewrap terms are generally unenforceable.

Browsewrap minority rule stated in PPT 15

Browsewrap terms may be enforceable if the user receives conspicuous notice.

Dispute resolution clause

A provision identifying how disputes will be resolved, such as arbitration, mediation, or litigation.

Forum selection clause

A provision identifying the location or forum where disputes will be resolved.

Choice of law clause

A provision identifying which jurisdiction’s law governs the agreement.

Electronic signature

An electronic sound, symbol, or process associated with a record and adopted with intent to sign it.

Examples of electronic signatures

A typed name, digitized handwritten signature, digital signature, or attributable acceptance click may qualify if adopted with intent to sign.

E-SIGN

The federal Electronic Signatures in Global and National Commerce Act, which generally recognizes electronic records and signatures.

E-SIGN consent principle

E-SIGN does not force a party to agree to electronic transactions or signatures.

Electronic record retention

The electronic record must be capable of accurate retention and reproduction when the applicable rule requires it.

E-SIGN exclusions listed in PPT 15

Certain court, family-law, eviction, foreclosure, health-insurance termination, prenuptial, and will-related documents fall outside the federal electronic-equivalence rule.

UETA

The Uniform Electronic Transactions Act, a state-law framework recognizing electronic transactions, records, and signatures.

UETA agreement requirement

The parties must agree to conduct the transaction electronically.

UETA scope

Generally covers electronic records and signatures in business, commercial, and governmental transactions, subject to exclusions.

UETA sending

A readable electronic record leaves the sender’s control and is properly directed to the recipient’s system.

UETA receipt

A readable electronic record enters the recipient’s designated processing system; actual awareness is unnecessary.

Partnering agreement

An agreement establishing recurring terms for future transactions between parties that regularly do business together.