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E-Contracts
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Introduction
Most courts find E-Contracts involve basic principles of contract law, applied in the online context.
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§1: Online Contract Formation
Online Offers should include: Remedies for Buyer. Statute of Limitations. What constitutes Buyer’s acceptance. Method of Payment. Seller’s Refund and Return Policies. Disclaimers of Liability. How Seller will Use Buyer’s Information
(Privacy).
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Online Contract Formation
Dispute Settlement Provisions. Choice of Law. Choice of Forum. E-Bay uses online dispute resolution.
Displaying the Offer (via hyperlink). How Offer Will Be Accepted.
Amazon.com--Checkout. “I Accept” Button to Click.
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Online Acceptances
Click-on Agreements. Shrink-Wrap Agreements.
Contract terms are inside the box. 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).
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Online Acceptances
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).
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§ 2: E-Signatures
E-Signature Technologies. Asymmetric Cryptosystem. Cyber Notary.
State Law Governing E-Signatures. Uniform Electronic Transactions Act (1999).
Federal Law. E-SIGN (2000) gives e-signatures and e-
documents legal force.
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§3: 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.
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§ 4: 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.
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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.
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Highlights of UETA
Parties must agree to Conduct Transactions Electronically. 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.
Dispatched when leaves control of sender. Received when enters recipient’s processing
system.
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§ 5: 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.