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CLIP Wrap Agreements; Considering The Standpoint Pertaining To Legislation And Application In Online Communities

Most People unknowingly accepted clickwrap agreements numerous times, such as after downloading an app, creating an online account, or electronically signing paperwork. Clickwraps are a quick way to quickly express legal assent and are frequently used to accept privacy rules and terms and conditions agreements.

The user only needs to read and select "I agree." With that click, the company has obtained your approval and has given you permission to proceed to the main event. If don't want to agree can opt for cancel option which indicates rejection. Overall it all depends upon the user assent.

Agreements with a clickwrap technology need the user to click a straightforward button in order to be accepted. This makes for a simpler and quicker user experience by enabling organisations to obtain legal authorization in a matter of seconds. Clickwrap agreements have a significant role in securing user consent for a wide range of purposes, such as cookie usage, communication preferences, and acceptance of terms and conditions outlined in privacy policies, terms of service, copyright policies, and other user-related policies.

Employing an interactive clickwrap approach guarantees that users provide informed consent, emphasizing the importance of presenting policies that are transparent and easily comprehensible.

The definition of E-contracts does not include in the definition of Indian contract 1872, and also not included under Information Technology Act, 2000, under section 10 A (amend in 2009) but that does not conclude that it's not valid in India since no Supreme Court judgements has oppose it. Also, under Indian Penal code section 65-B of the Indian Evidence Act of 1872 specifies a mechanism for submitting electronic documents.

Examples of Clip wrap agreement
  • Imposing the obligation on users to acknowledge and agree to terms and conditions prior to downloading software or accessing content.
  • Mandating users to acknowledge and agree to terms and conditions as a prerequisite for registering for a social media account.
  • Enforcing the requirement for users to acknowledge and agree to terms and conditions before completing a purchase on an e-commerce website.
  • Making it obligatory for users to acknowledge and agree to terms and conditions prior to utilizing a mobile app.

Guidelines to be Followed for Clip Wrap Agreement
Below are a few key guidelines for developing a clickwrap agreement:
  1. Specify the terms and conditions.
  2. Ensure that the user gets the opportunity to read and comprehend the terms and conditions prior to consenting to them.
  3. User to take affirmative action for giving consent like click button or cancel if want to decline the terms and conditions of agreement.
  4. Maintain a record of the user's acceptance of the terms and conditions.

Importance of Clip Wrap Agreements
The Clip wrap agreements provide a consent record by the user for all the privacy policies, copyright or any other important policies since it's not possible to reach out each and every person for the further use of website with certain term and conditions in order to prevent possible lawful or privacy concerns, which ensure that all users who utilise the service must approve all legal terms.

Also, the contract which is been formed by the user is legally valid and can be questioned in court in any future circumstances. Since these are non-negotiable so the companies' websites can easily come into contract with their users with their consent and also in the case of ADP v. Lynch[1] the Clip agreements can also be between employer and employee too.

Cases In India
Ddit(lt) Mumbai v. Gujarat Pipavav Port ltd[2]
Clip wrap agreement enforceability depends on the crucial issue revolves around whether the consent was obtained voluntarily and actively or not since all can be enforceable if terms and conditions are been fulfilled. The clickwrap agreement under this case served as the basis for addressing the violation of copyright.

Trimex International FZE vs. Vedanta Aluminium Limited, India, 2010[3]
Both parties mutually agreed to enter into the contract through email communication. However, due to a dispute between them, the respondent refused to engage in any legal proceedings, asserting the absence of a fully executed contract between them.

The Supreme Court explicitly clarified that any contract negotiated and discussed via email would be considered valid and, therefore, enforceable.

Is Clip wrap agreements form Contract of adhesion?
Since in such agreements the higher bargaining power party supersede the lower barraging power party with very less or no negotiate power for reasonable terms. In terms of Clip wrap agreements there is no authority to negotiate with the terms of given terms and conditions all the user have to do either accept or reject. Therefore, it can be concluded it thus form contract of adhesion. "A standard-form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms."[4]

Social Media and Clip wrap agreements
It's a very common practice for website such as social media platforms like Instagram, Facebook as component of various software products' installation procedures, as well as other instances where consent is requested via digital media

The research uses Herman and Chomsky's concept of the "buying mood" to analogize how social media maintain flow to services that are commercialised while deflecting attention from laws that may inspire protest. This is done using Clickwraps' agenda-setting feature, which prioritises policy links over suggestions that encourage circumvention. The findings highlight how clickwraps discourage adherence to reputational and privacy safeguards by implying that consent documentation is not significant, normalising this circumvention. The claim that clickwraps perform a political-economic role implies that capitalist production methods are effectively incorporated into social media services and have the capacity to manufacture consent.

Difference between Clip wrap agreements and Browse wrap agreement's
Browse wrap agreements : Generally, at the bottom of page use see an agreement and consent been assumed if the user continue to use the app i.e. Browse app agreements. These agreements are frequently seen on websites and even in a few mobile apps and software programmes. They are also accessible via a hyperlink.

Like in case of Re Inc since the consumers were quite in state of confusion because of design and fonts of the link were similar to other links therefore such contracts are not enforceable. Nguyen V. Barnes and Noble Inc., the enforceability of the contract will highly depend on the link's vicinity and prominence.

The very basic yet important difference between these two is Consent or acceptance. Clickwrap agreements need a user's explicit consent. Browse wrap no explicit consent necessary for browse wrap agreements. Through both are enforceable in court but the clip app agreement enforceability is more is quite easy since the user's click serves as an expressive gesture of assent whereas, in case of browse wrap agreements the more publicly stated the terms are, the more likely it is that a court would find that users are bound since they must have seen the conditions (or purposefully ignored them), and their ongoing use of the website proves that they have agreed to them. Likewise in Clip wrap agreement, Browse wrap contracts are distinct in that they do not compel the consumer to accept the contract; rather, acceptance is presumed as a result of visiting the website.

Relevancy of IT act in Clip Wrap Agreements
All types of contracts fall under the Indian contract act,1872 but exception to this contract which are been made digitally (clip wrap, shrink wrap, browse wrap) are comes under the IT Act,2000. But no specifically mentioning about such agreements but neither considered invalid.

Section 10A Under IT Act 2000[5] (It Act,2000), which is been inserted after the amendment is been brough in 2009 which state specifically about the contract validity executed through electronic means. The disseminatiotion, consent, revoke all are conveyed either in electronic formats or records in the course of contract formation.

Digital signatures are defined in Section 2(p) (It Act,2000) of the Information Technology Act of 2000 as "a method or procedure by which a subscriber authenticates any electronic record." A digital signature, in essence, fulfils the same function for electronic documents as a handwritten signature does for printed ones. It is a one-of-a-kind and unforgeable piece of information that confirms the identity of the person linked with it and shows their assent or authorship of the document to which the signature is affixed.

Section 11. Attribution of electronic records[6].
  • An electronic record shall be assigned to the creator regardless of whether it
  • was delivered by the sender himself
  • through someone authorized to act on the originator's behalf with regard to that electronic record
  • through a system of information set up by or on the part of the creator to function automatically.

Clip Wrap agreement in relation to Insolvency and bankruptcy
Insolvency and bankruptcy can impact clickwrap agreements in certain circumstances. When a company faces insolvency or undergoes bankruptcy proceedings, its contractual obligations, including clickwrap agreements, may be subject to scrutiny, potential adjustments, or termination.

During insolvency or bankruptcy proceedings, the court or the appointed insolvency practitioner may review the company's contractual agreements, including clickwrap agreements, to assess their enforceability and the extent to which they can be upheld. This evaluation is carried out to safeguard the interests of creditors and ensure a fair distribution of assets. If the clickwrap agreement is deemed essential to the company's business operations, it may be continued or transferred to another party as part of the company's restructuring or asset sale. However, if the court determines that the clickwrap agreement imposes excessive burdens or is detrimental to the company or its creditors, it may be modified or terminated.

It is important to note that the specific impact of insolvency and bankruptcy on clickwrap agreements can vary depending on the jurisdiction and the applicable laws governing insolvency proceedings. Therefore, seeking advice from legal professionals or insolvency practitioners familiar with the relevant jurisdiction's laws is recommended to understand the specific implications in a given situation.

Given the rising use of clickwrap contracts in ordinary business transactions, the laws governing e-contracts are frequently ambiguous on a global scale. After the assent been given by clicking ''I agree'' then such contract enforceable within the eyes of law and binds the party legally too. It's vital that users must thoroughly read and comprehend the terms and conditions before accepting them in the cases where such agreements are related to bank accounts, social media accounts or any kind of software installation. Other than this Clickwrap, Shrinkwrap, and Browsewrap are the digital agreement's future.

Clip wrap agreements are thought to be among the best as they demand active consent from users, as opposed to other contracts in which inferred usage of a site is regarded legitimate consent. With the growing frequency of Clickwrap agreements online, it becomes crucial to embrace optimal approaches for their utilization to guarantee their validity and enforceability within a legal setting.

The existing of clip wrap agreements is only been mention under IT Act,2000 under section 10A. since it's a contract it should also been specify in Indian Contract Act,1872. Additionally, there is an appetite for standard regulations. These contracts involve technical hazards therefore, it is critical to set up to govern these types of agreements. It enjoys legal validity worldwide but still is still unresolved. The use of such agreements is been increased over years in India and therefore it has to be sufficiently governed by Indian regulations.

  • MANU/FETC/0109/2017
  • MANU/SC/0057/201
  • Black's Law Dictionary, 9th edn., p. 368

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