Feldman v.

s Google

Here, Feldman had purchased the “Google Adwords” services from Google and when
Feldman had issues with the product he sued Google in the court of law, here in the
United State District Court of Pennsylvania. Google contested that as per the
contract executed by Feldman, the jurisdiction lied in the courts in California.
Feldman refuted this contract stating that “the Agreement was never seen, signed or
negotiated by him or any of his associates”. He stated that in the absence of
knowledge of the terms of the contract, the was no “meeting of minds” between him
and Google and hence the Contract was void.

However, Google claimed that when feldman was purchasing the “Google Adwords”
services from them, he was directed to a webpage displaying the Contract, further,
the webpage in bold letters stated the following “ Carefully read the following
terms and conditions. If you agree with these terms, indicate your assent below.”

Followed by these words was the entire text
scroll through the window and at the end of
terms and conditions or refuse them and not
Feldman, had indeed clicked on “Accept” and
of the Agreement
of the contract which Feldman had to
which he had a choice to accept the
purchase the services from Google.
hence accepted the terms and conditions

The court upheld the claim of Google and noted that the fact that the entire
contract was displayed by Google and that Feldman had scrolled through the text
meant that Google had provided reasonable notice to the contents of the contract
and hence Feldman was deemed to be aware of the contents of the contract and here
the validity of the “Clickwrap Agreement” was upheld.

Specht vs Netscape Comms. Corp

In the previous case, it was observed by the court that if the contracting party
clicked on a button which stated expressly that clicking on this button would mean
acceptance of the contract, then the contracting party could not later refute the
terms of the contract stating that he wasn’t aware of them.

However, in this case, the contract mentioned that by downloading the defendants
software, the plaintiff had agreed to the terms of the agreed. This particular
statement was mentioned in the contract however, it was nowhere mentioned near the
Download button. The plaintiff was hence unaware that downloading the software
would make them subject to the License Agreement.

The United States Court of Appeals held here that the defendant failed to make the
contractual nature of the “Download” button obvious and hence the plaintiffs were
not subject to the terms of the License Agreement
Bragg vs Linden Research Inc

Here a player of an online game sued the gaming company stating that the although
he had agreed to the contract prior to purchasing the game from the defendant, he
had not anticipated the contractual terms to be procedurally and substantively
unconscionable. He claimed that this Clickwrap agreement was a form of Adhesion
contract where the terms of the contract were drafted in such a manner that it was
extremely one-sided and would shock the conscience.

The United States District Court of Eastern Pennsylvania upheld the contention of
the Plaintiff here and refuted the validity of the contract.

Clickwrap Agreements and India

The Indian Contract Act, in its definition of Contract merely states that a
Contract is an agreement enforceable by law. The 1872 Act has not been amended yet
to specifically include the scope of an Electronic Agreements or Click-wrap
Agreements. The Supreme Court of India in Trimex International FZE vs Vedanta
Aluminum Limited, India, 2010 (1) SCALE 574 upheld that if the terms of a Contract
had been discussed over the email, such emails constituted to be a valid contract
and hence were enforceable. Here the Supreme Court recognised the validity of
electronic contracts even if they were not electronically signed and registered.

In the case of LIC India vs. Consumer Education and Research Centre the Supreme
Court of India commented on the scope of its intrusion in a contract where the
parties to the contract had unequal bargaining power. The Court held that when a
contract is of such a nature that it can be stated to be an Adhesion Contract and
further when the parties to the contracts do not have equal bargaining power then
in the light of Article 14 of the Constitution of India (guaranteeing equal
protection of law to its citizens) the Supreme Court shall strike an unfair or
unreasonable contract.

It can thus be observed that the Indian Courts have accepted the validity of
electronic contracts however this is not a blanket acceptance. They are willing to
delve deeper into the contents of the contract, the bargaining powers of the
contracting parties and the terms of the contract to decide upon its validity.
However, the courts have not yet discussed the possibility of where the
jurisdiction would lie in cases where one party is domiciled in India and another
party to the contract (a party with a higher bargaining power) is based out of the
country.

In these circumstances, it is essential for us to understand what factors must we

consider while agreeing to an online or a “click wrap” agreement. Some of these
factors are listed as under -
The most primary precautionary measure would be to try and read the contents of the
agreement. The entire agreement need not be read at length, but it is essential to
glance to the agreement to understand what data shall be shared with the other
party, are there any third parties involved etc.

The number of clickwrap agreements executed on a daily basis by any person is large
hence it would not be possible to read and analyse every single agreement. However,
those contracts which are for high priority tasks such as creation of an online
bank account, purchasing expensive goods and services online need to be read prior
to accepting them.

If a contract does not expressly provide an “I agree to the terms and conditions”
button or an “Accept” button or if the contract is hidden and only the
“Agree/Accept” button is visible, then such contracts can be contested.

It is a common trend that most of the contracts include a clause for arbitration,
usually in the county of the creator of the contract. Such clauses can at times
considered to be unconscionable considering the fact that the party with a lesser
bargaining power has no means to travel to and attend the proceedings in another
country. Such terms can be highlighted while contending that the contract is highly
biased.

In conclusion, it can be said that such electronic contracts and clickwrap

agreements are gradually getting more common globally and their drafting is such
that they make it nearly impossible to be contested. In such circumstances, it is
prudent to be aware of the contents of the contract proposed to be executed rather
than being caught unawares by their biased terms.