South Carolina Guidelines for Drafting Shrink Wrap and Click Wrap Agreements: A Comprehensive Overview When it comes to conducting business online and selling software or digital products, it is crucial for companies to have comprehensive and legally enforceable agreements in place. In South Carolina, like in many other states, two common types of agreements used in the digital realm are Shrink Wrap and Click Wrap Agreements. These agreements are designed to protect the interests of both the software provider and the end-user, providing a clear understanding of the terms and conditions governing the transaction. Shrink Wrap Agreements: Shrink Wrap Agreements are contracts that are formed when customers purchase software in a physical package, featuring a shrink-wrapped box or a sealed physical media (e.g., CD-ROM). Upon opening the package or breaking the seal, the customer agrees to the terms and conditions outlined in the agreement. Some key considerations for drafting Shrink Wrap Agreements in South Carolina include: 1. Conspicuousness: The terms and conditions should be clearly visible on the outside of the shrink-wrapped package, ensuring that customers are aware of the agreement before purchase. 2. Reasonable Notice: The terms must provide reasonable notice to the purchaser and allow them an opportunity to review the terms before acceptance. Additionally, any specific restrictions, limitations, or disclaimers should be adequately disclosed. 3. Unambiguous Consent: The act of opening the shrink wrap or breaking the seal should indicate the customer's acceptance of the agreement, thereby forming a legally binding contract. Click Wrap Agreements: Click Wrap Agreements, on the other hand, are electronic agreements typically encountered during online transactions. They require users to affirmatively indicate their consent by clicking on an "I agree" or similar button before they can proceed with the purchase or use of software or an online service. Important factors to consider in drafting Click Wrap Agreements in South Carolina are as follows: 1. Clarity and Readability: The terms and conditions should be presented in a clear and understandable manner, ensuring that users are fully aware of the rights and responsibilities they are assuming. 2. Affirmative Action: Users must take an active step, such as clicking on a designated button, to demonstrate their consent to the terms. It is crucial to include an unambiguous statement that indicates the action triggers acceptance of the agreement. 3. Accessibility and Retention: The agreement should be easily accessible to users, preferably through a prominent link on the website, and provide options for users to retain a copy for future reference. It is important to note that these guidelines are intended to provide a general understanding of South Carolina's requirements for Shrink Wrap and Click Wrap Agreements. Legal advice from qualified professionals is highly recommended ensuring compliance with the specific laws and regulations governing the state. By adhering to these guidelines, businesses can establish agreements that protect their rights while enhancing customer satisfaction and transparency in digital transactions.
South Carolina Guidelines for Drafting Shrink Wrap and Click Wrap Agreements
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FAQ
A clickwrap (also known as click-accept, click-to-sign, or clickthrough) agreement is an online agreement that users agree to by clicking a button or checking a box that says ?I agree.? The act of signing via an electronic signature is replaced with the act of clicking.
Maintain a complete audit trail of records that includes information to identify the user who clicked through and accepted the clickwrap, as well as proof they viewed and consented to the agreement. Also, document the time and date stamp of the consent, as well as which version of the agreement the user consented to.
Yes, users can be bound by them even if they do not read the entire agreement. By clicking on "I Agree" button or taking a similar affirmative action, users are indicating their acceptance of the terms, regardless of whether they have read them in detail.
Is a clickwrap agreement legally enforceable? Yes, clickwrap agreements are legally enforceable. Under the U.S. federal Electronic Signatures in Global and National Commerce Act (?ESIGN?), clickwrap agreements and other forms of electronic signatures hold the same status as ?wet ink? signatures.
Unlike the shrink wrap agreements where the terms of the agreement are hidden inside the box, in case of click wrap agreements, all the terms and conditions are accessible prior to acceptance, either in the same window or through a hyperlink.
Clickwrap is a method of getting legally binding agreement to your legal documents. It means that the user has actually clicked "I Agree" to the Terms and Conditions and Privacy Policy or shown that they explicitly agree in some way.
Yes, clickwrap agreements (provided they are designed, presented, and tracked in compliance with best practices) are just as enforceable as both traditional wet ink signatures and electronic signatures in the US.
A common click wrap agreement example is software licensing. In this case, a user must agree to the terms and conditions before downloading software. Other examples include registering a social media account, NDA agreements, cookie policies, data processing agreements, and Statements of Work (SOWs).