Drafting Clickwrap and Browsewrap Agreements: Avoiding Enforceability Pitfalls

Navigating Issues of Authentication, Mutual Assent, Notice, Indemnification, Unilateral Modification, and More

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, July 6, 2017
Recorded event now available


This CLE webinar will provide corporate and technology counsel with guidance for drafting important and often-disputed terms in clickwrap, browsewrap and hybrid agreements. The panel will discuss clauses that should be included in these online agreements and explain strategies for avoiding enforceability pitfalls and resolving contract disputes.

Description

When purchasing goods or services via the internet, or simply when engaging with websites, consumers enter clickwrap or browsewrap agreements with retailers or service providers indicating that they accept the website’s terms of use. The enforceability of these agreements has been the subject of several recent court cases.

As the legal landscape surrounding online contracts continues to evolve, corporate counsel must understand the latest standards regarding the enforceability of clickwrap and browsewrap contracts and update their agreements accordingly. Care should be taken in drafting and managing provisions affecting contract authentication, mutual assent, notice, indemnification, and unilateral modification. Counsel must also help ensure that website terms and conditions are located in a conspicuous place.

Listen as our panel of attorneys experienced in negotiating clickwrap and browsewrap agreements discusses best practices for drafting and negotiating the agreements. The panel will discuss key clauses that should be included in the contracts and provide strategies for avoiding common pitfalls and resolving contract disputes.

Outline

  1. Recent case law on clickwrap and browsewrap agreements
  2. Key terms and enforceability challenges
    1. Notice
    2. User acceptance
    3. Mutual assent
    4. Authentication
    5. Indemnification
    6. Modification
    7. Forum selection
    8. Arbitration
    9. Other key terms

Benefits

The panel will review these and other key issues:

  • What contract terms are most frequently included in clickwrap and browsewrap agreements?
  • How can corporate counsel best mitigate risk when drafting the agreements?
  • What are the most commonly disputed contract terms and what are some effective strategies for resolving them?

Faculty

Tara Aaron, Partner
Aaron Sanders Law, Nashville, Tenn.

Ms. Aaron helps clients across multiple industries with licenses and disputes involving copyrights, trademarks, patents, domain names, software, and trade secrets. She focuses on representing the concerns of technology companies. Ms. Aaron’s clients include many technology start-ups, software developers and website designers who come to her for copyright, trademark and licensing matters. She also assists with the purchase and sale of IP assets. Ms. Aaron has successfully obtained hijacked domain names for the rightful owners, and regularly negotiates service and technology agreements with the largest telecommunications and software providers in the country.

Rakesh Gopalan, Partner
McGuireWoods, Charlotte, N.C.

Mr. Gopalan practices in the area of corporate transactions, focusing on complex technology deals as well as public company securities issuances and reporting requirements. He represents companies of all sizes, both vendor- and customer-side, with respect to technology and other commercial transactions, including related to large-scale IT and business process outsourcing and insourcing, enterprise resource system deployment and restructuring, software and other licensing arrangements (including open-source components, shrinkwrap and clickwrap agreements), telecommunications, internet service provision, Wi-Fi, SaaS, and other vendor and supply chain procurement matters.

Adam Grove, Senior Licensing Counsel
Magic Leap, Ft. Lauderdale, Fla.

Mr. Grove specializes in complex technology transactions. This includes patent and copyright licensing, technology development agreements, supply chain work, online contracting (including "-wrap" agreements), cloud and SaaS agreements, ERP implementations, and outsourcing.


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Business Contracts and Franchise Advisory Board

Vincent R. Martorana

Assistant General Counsel

KPMG

Charles (C. J.) Schoenwetter

Partner

Bowman and Brooke

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Partner

Davis Wright Tremaine

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Fox Rothschild

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Chief Legal Officer

Coverall North America

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