Finding Common Ground in the World of Electronic Contracts: The Consistency of Legal Reasoning in Clickwrap Cases

INTRODUCTION I. THE VALIDITY OF ELECTRONIC TRANSACTIONS AND THE REMAINING QUESTION OF ASSENT IN CLICKWRAP A. UETA and the Enforceability of Electronic Documents B. The Impersonal Nature of Clickwrap: A "Meeting of the Minds" in the Absence of Communication II. MUTUAL ASSENT IN CLICKWRAP: THE REQUIREMENT OF NOTICE AND THE RIGHT TO REVIEW AND REJECT A. The Validity of Online Clickwrap: Determining Conspicuous Notice and the Ability to Reject 1. Constructive Notice in Online Clickwrap 2. Requiring the Buyer to Click "I Agree": Distinguishing Clickwrap from Browsewrap 3. Deep Linking into Web Sites: The Ability to Bypass Terms Vacates a Finding of Assent 4. The Necessary Opportunity to Reject: Invalidating "Assent Now, Terms Later" Contracts 5. Confirming the Validity of Online Clickwrap B. The Enforceability of CD Clickwrap: Notice on the Outside, Terms on the Inside, and a Right to Return 1. Required Notice of Subsequent Terms and an Ability to Reject by Return 2. Unambiguous Assent: Establishing Proper Notice of Subsequent Terms 3. The Insufficiency of Notice Without the Ability to Reject and Return 4. Reconciling Disparity in CD Clickwrap 5. Clarifying Notice of Subsequent Terms and the Proper Period of Review a. Clarity of Notice b. Determining a Reasonable Length of Review 6. The Ability to Reject and Freedom to Contract III. CLICKWRAP AS A CONTRACT OF ADHESION: THE BENEFIT OF A STANDARDIZED CONTRACT VERSUS UNCONSCIONABLE TERMS A. Defining Clickwrap as an Adhesion Contract: Standardized Terms, No Negotiation, and Unequal Bargaining Power B. Validating Standardized Contracts: The Requirement of a "Reasonable Expectation" of Negotiation C. The Practical Benefit of Standardized Contracts D. Judicial Scrutiny and the Protection of Competition from Holdings of Unconscionable Terms E. Establishing Unconscionable Terms in the Absence of Competition 1. The Requirement to Prove Both Procedural and Substantive Unconscionability 2. Demonstrating Substantive Unconscionability F. The Lesson in Applying the Unconscionable Doctrine: Clickwrap Plays by the Same Rules as Any Other Contract IV. PRIOR WRITTEN AGREEMENTS: DOES THEIR EXISTENCE AUTOMATICALLY INVALIDATE A SUBSEQUENT CLICKWRAP CONTRACT? A. General Rules and the UCC: Determining Final Intent of the Parties Is a Question of Fact B. The Importance of Explicit Terms 1. Trumping Clickwrap with Unambiguous Agreements and Integration Clauses 2. Upholding Clickwrap: Filling the Void Left by Ambiguous Terms and a Prior Course of Conduct C. Notes of Caution While Reinforcing the Validity of Clickwrap CONCLUSION INTRODUCTION With the technological advancements in global communications, contractual arrangements created by electronic transactions are becoming more commonplace. Electronic contractual arrangements have, however, raised complex legal issues unprecedented in the law. Courts must now confront worldwide access to agreements via Web pages, e-mails, and CD-ROMs, and legal doctrines must be consistently tested and reapplied to address the new forms of contracting stimulated by advancing technology. Technology's impact on traditional contract law doctrine is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing clickwrap agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller's services. …