New York Guidelines for Drafting Shrink Wrap and Click Wrap Agreements

• Category: Technology - Doing Business
• State: Multi-State
• Control #: US-DB0806BAM
• Format: Word; Rich Text

Description

This form is a detailed contract regarding software or computer services. Suitable for use by businesses or individual contractors. Adapt to fit your specific facts.

New York Guidelines for Drafting Shrink Wrap and Click Wrap Agreements When it comes to the creation and implementation of Shrink Wrap and Click Wrap Agreements in New York, businesses must adhere to certain guidelines to ensure legality and enforceability. These agreements are widely used in the digital age to establish terms and conditions between businesses and consumers. Understanding the key principles and requirements outlined by New York's legal framework is essential for drafting effective and legally binding agreements. 1. Definition and Purpose: Shrink Wrap and Click Wrap Agreements are contracts formed through electronic means, often seen during software installations, online purchases, or website registrations. These agreements seek to establish the terms and conditions under which the user can access and use the software or digital service. They are designed to protect the rights and interests of both parties involved. 2. Enforceability and Formation: In New York, for Shrink Wrap and Click Wrap Agreements to be enforceable, certain criteria must be met. The agreement must contain clear and conspicuous terms, easily accessible to the user. The user must have an opportunity to review the terms and manifest their acceptance or rejection explicitly. For Click Wrap Agreements, users typically express consent by checking a box or clicking an "I agree" button. Shrink Wrap Agreements, on the other hand, are generally considered enforceable when the user breaks a clearly visible seal on a physical product. 3. Incorporation of Terms: It is crucial for businesses to inform users about the terms and conditions of the agreement and ensure they have access to review them before acceptance. These terms should cover essential elements such as the scope of the license granted, limitations of liability, dispute resolution mechanisms, intellectual property rights, and any other relevant provisions. Properly incorporating these terms into the agreement helps establish the contractual relationship on a sound legal basis. 4. Unconscionably: New York's guidelines emphasize that Shrink Wrap and Click Wrap Agreements should not contain terms that are deemed "unconscionable" — fundamentally unfair or oppressive. If a court determines that particular terms are unconscionable, they may be deemed unenforceable, potentially nullifying the entire agreement. Therefore, businesses should be cautious not to include overly burdensome or one-sided provisions that could be deemed unconscionable under New York law. 5. Post-Acceptance Disclosure: Businesses should consider providing access to the agreement's terms after acceptance, preferably through a user-friendly and easily accessible format. This allows users to review the terms and conditions at any time during the course of their relationship with the software or digital service provider. In addition to these general guidelines, it's important to note that New York courts have not specifically differentiated between Shrink Wrap and Click Wrap Agreements in their rulings. However, the principles mentioned above apply to both types of agreements, as they share similar characteristics and considerations. Overall, businesses operating in New York should ensure they comply with these guidelines when drafting and implementing Shrink Wrap and Click Wrap Agreements. Staying up to date with any new legal developments in this space is essential to maintain the enforceability and effectiveness of these agreements.