The online fine print - those terms and conditions that you
agree to when you buy something online - it
really does matter where those terms are
placed in the checkout process. A recent US case
illustrates this point. In Tompkins v. 23andMe, Inc., 2014 WL
2903752 (N.D. Cal. June 25, 2014), the court dealt with an
online checkout process for DNA testing kits sold by 23andMe.
When completing a purchase, customers were not presented with any
mandatory click-through screen for the transaction to complete.
There was a passive link at the footer of the transaction page,
something the court dismissed as a "browsewrap", which
was ineffective to bind the customers. In other words, the Terms of
Service were not effective at that point in the transaction.
In order to obtain test results, however, customers were obliged
to register and create an account with 23andMe. In this (post-sale)
registration process, a mandatory click-through screen was
presented to customers, not once but twice. The court decided
that this second step was valid to bind
the customers who purchased the DNA testing kits.
While this shows that courts can take a position that is
sympathetic to online retailers, this should not be taken as an
endorsement of this contracting process. In my view, the
better approach would be to push customers through a mandatory
click-through screen at both stages. This is particularly so in a
case like 23andMe, where the first transaction is for
sale of a product (the kit) and the second step relates
to a service (processing test results). The two, of course, are
intertwined, but the double click-through reduces risk and plugs
the holes left by the single click-through. For example, a customer
may buy a kit and never create an account, or use a kit
without have purchased it. As the court notes: "it is possible
for a customer to buy a DNA kit, for example, as a gift for someone
else, so that the purchasing customer never needs to create an
account or register the kit, and thus is never asked to acknowledge
We can speculate on why the click-through appeared at the second
account-creation step, and not the first kit-purchasing step.
Sometimes, the purchasing process is modified over time due to
changes in marketing or sales strategies. Perhaps the company broke
a unified transaction process, which ended with account-creation,
into two separate steps after market research or customer feedback.
When something like this happens, it is important to repeat the
legal review, to ensure complaince with e-commerce best
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Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
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