Description
For decades now we have been in an era of high volume, low cost marketing of software over the internet for every conceivable business and personal use (including “Apps”, games, videos and the like) which has necessitated more economically practicable and physically possible ways of obtaining the end-user/licensee’s “constructive acceptance” of the terms of the software license.
Like its “sister” the shrink-wrap Software Licence, a “Click-wrap” Licence (also commonly known as a “Clickwrap” or “Click through” and less often as “Web-wrap”) has been devised to use online digital technology to ensure that the full terms of the software license can be read and constructively accepted by a “click Accept” (or “I agree”) button (which is, in essence a digital signature) at the end of the licence prior to the end-user customer (“licensee”) being able to download or access (in the case of a subscription SaaS-type service) the software.
As mentioned above, the full terms and conditions of the Click-wrap licence should always appear on-screen at the earliest possible opportunity (commonly displayed in a scroll down window), typically at the ordering/pre-download or subscription stage and/or before the software can be downloaded or accessed. This is to ensure its full terms and conditions can be read and “accepted” by the proposed end-user. The owner/licensor should be able to produce digital evidence of such acceptance by the end-user if required, in the event of a dispute or when trying to enforce any of the license terms. It has to be said that because all forms of click-wrap licence are so commonplace and indeed if viewed on a tablet, mobile or other small-screen device, then most end-users never actually read the full terms and conditions before clicking “Accept”. This does not in any way absolve the end-user from acceptance. The added text in this contract to “save a copy of this licence for future reference” is there to try and re-enforce the nature of an ongoing license.
As electronic commerce has matured over the decades, there are very many variations of Click-wrap licences, although the most commonly used method, as mentioned above, of constructive acceptance tends (so far) to be “clicking” an “Accept” button (or “I agree”) button at the end of the licence. Some click-wrap licences also have a “Do not accept” button as well (as this Contract does). It is only by clicking the “Accept” (or “I agree”) button that the end-user should be able to download or access the software. (For another form of implied/constructive acceptance when no button is clicked, see Browse-wrap licence in Contract 61B.)
Payment of the software licence fee is more often than not also effected over the internet and payment may additionally (to click “Accept”) be necessary before the software can be downloaded or accessed.
Unlike the end-user of a “shrink-wrap” licence who is almost always unknown (unless they return a warranty or registration card or some similar feedback with their details), end-users of “Click-wrap” licensed software, can be identified in several ways: either by their payment details, registration details (if required to register) and/or IP address which identifies the click “Accept”.
By far the most difficult provision to draft and indeed enforce in any such licence is that relating to the applicable law (see Clause 15). Since the internet is truly global and there are (usually) no boundaries for mass online marketing of software thus a cross-border/international approach is suggested in this Contract with a few optional variations.
Though it could be claimed that click-wrap licensing has allowed e-commerce to flourish in terms of software, in reality, it is technology that dictates the means, and only thereafter are applicable contracts drafted by virtue of sheer necessity, to fit the technological and legal challenges which ensue.
