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There is currently great variation in the language used in shrink-wrap and click-wrap agreements. In part, such variation is due to the uncertainty caused by the lack of court decisions interpreting such agreements. Although the following steps, at this time, do not ensure enforceability, they address many of the currently identified legal obstacles. (1) The license or agreement should give the user or buyer clear notice at the time of purchase that a transaction is subject to such an agreement. (2) This notice should be clearly visible to the user or buyer at the outset of the transaction and should include conspicuous warnings about the conduct deemed to be acceptance of the license. For example, the notice may be displayed as part of an online ordering screen. Since the agreement will typically be directed at non-lawyers, the notice (and the license itself) should be clear and concise so that an average person can understand the nature and terms of the agreement. (3) The detailed license terms must be disclosed to the user or buyer prior to or shortly after the start of use of the licensed or purchased materials. (4) The user or buyer should be offered a refund if he or she decides to reject the terms. The user or buyer should also be provided with an easy method for returning the purchase or canceling the agreement. (5) The user or buyer’s method of accepting the terms of the agreement should involve a specifically defined action, such as clicking a box or typing “yes” before being permitted to continue in a transaction, in addition to the user’s continued use of the licensed materials. (6) If a shrink-wrap or click-wrap agreement will include terms that are uncommon in an industry or are likely to surprise or affect the decision of the user or buyer, such terms should be highlighted to the customer before the conclusion of the transaction. For example, in a fully online transaction, it may be possible to set up a Web page so that a user would have to review all terms of the transaction before making a decision. Depending on the particular means of presentation, such a “virtual box” could have unlimited space for displaying contract terms. Julian S. Millstein, Jeffrey D. Neuburger & Jeffrey P. Weingart are with the law firm of Brown Raysman Millstein Felder & Steiner ( www.brownraysman.com) in New York. To purchase the book, “Doing Business on the Internet: Forms and Analysis,” click here.

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