Drafting Clickwrap and Browsewrap Agreements: Avoiding Enforceability Pitfalls

Authentication, Mutual Assent, Notice, Indemnification, Unilateral Modification, and More

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


Conducted on Tuesday, March 24, 2020

Recorded event now available

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Program Materials

This CLE webinar will provide corporate and technology counsel with guidance for drafting essential and often-disputed terms in online contracts, sometimes called “clickwrap” or “browsewrap” 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 selling goods or services via the internet, or when providing information through websites, retailers and service providers seek to have consumers enter into agreements usually by clicking on a button indicating that they accept the website's terms of use. The enforceability of these agreements has been the subject of many court cases.

As the legal landscape surrounding online contracts continues to evolve, corporate counsel must understand the latest standards regarding the enforceability of contracts. Counsel must carefully draft and manage provisions impacting contract authentication, mutual assent, notice, indemnification, and unilateral modification and must also help ensure that website terms and conditions are presented in a manner that will be found to make the agreement enforceable.

Listen as our panel of attorneys experienced in online contracting discusses best practices for drafting and structuring these terms. The panel will discuss key clauses that should be included in the contracts and provide strategies for avoiding common pitfalls.

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Outline

  1. Recent case law on so-called 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:

  • How does calling online agreements "clickwrap" or "browsewrap" confuse the enforceability analysis?
  • What contract terms are most frequently included in online 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

Gold, Steve
Steve Gold

Member
GoldTechLaw

Mr. Gold practices technology and outsourcing law, with over 30 years of experience in the field. His experience...  |  Read More

Gopalan, Rakesh
Rakesh Gopalan

Partner
McGuireWoods

Mr. Gopalan practices in the area of corporate transactions, focusing on complex technology deals as well as public...  |  Read More

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