E-COMMERCE LAW UPDATE:

DOING BUSINESS ON THE NET (AND GETTING IT RIGHT)

 

CREATING ENFORCEABLE

ELECTRONIC CONTRACTS

 

ROBERT L. PERCIVAL

OGILVY RENAULT

 

 

PRESENTED AT:

The Fourth Annual IT Law Spring Training Program:

Legal & Business Issues For IT Transactions

May 19-20, 2004

Osgoode Hall, Toronto

CREATING ENFORCEABLE ELECTRONIC CONTRACTS

Robert L. Percival[1]

 

Introduction

Over the last several years the Internet has emerged as an important tool to facilitate the conduct of business for consumers and businesses alike.  Conducting business in the off-line world requires that the parties engaging in commerce each understand and agree to the legal rules that will govern their business relationship.  In order to ensure certainty, parties engaging in electronic commerce need to ensure that transactions conducted by electronic means over the Internet are legally binding and enforceable to the same extent as traditional paper - based transactions.  The struggle of contract law to keep pace with technological change is not new; past technological advancements such as the telegraph and facsimile machine also introduced hurdles in the application of traditional contract law principles that the common law had to overcome.  However, the Internet has revolutionized the ease at which businesses and individuals can engage in commercial activity and arguably has required contract law to adapt at a much faster pace.  The Internet has introduced some uncertainty into many aspects of commercial transactions conducted via electronic means, such as in the areas of the formation of enforceable electronic contracts, jurisdiction, and statutory issues relating to evidence and signature requirements.  Slowly, through the combination of common law developments and legislative reform, the legal rules relating the creation of enforceable electronic contracts are becoming increasingly more certain. 

Contracts

Contracts are simply agreements between parties creating obligations that the law will enforce.  In order to create binding contracts in Ontario three primary elements must exist:

(a)        the terms and conditions of the proposed contract must be clearly and accurately presented (offer);

(b)        the party accepting the offer must unequivocally communicate that acceptance to the offering party; and

(c)        the flow of consideration between the parties (monetary or otherwise) must occur.

One of the principle issues concerning electronic contracts has been the question of how do parties establish the terms and conditions of an electronic contract? How can an offer be made and acceptance given? How are traditional contract principles that have been developed over several hundred years concerning the formation of contracts to be applied in cyberspace?

Other considerations can also affect the formation and enforceability of contracts, such as: capacity to contract; writing requirements; signature requirements; record keeping; and the absence of terms that are unconscionable or greatly unfair, and it is beyond the scope of this paper to address any such issues.

The focus of this paper is to provide the reader with an overview of the law relating to the establishment and formation of electronic contracts and some practical suggestions and recommendations concerning the steps which can be taken in order to create enforceable electronic contracts.

Electronic Contracts

There are several different forms of electronic contracts, most commonly:

“Click-Wrap” or “Click-Through” or “Web-Wrap” contacts are electronic contacts that require the user to scroll through terms and conditions (or multiple web pages on a web site) and to expressly confirm the user’s agreement to the terms and conditions by taking some action, such as clicking on a button that states “I Accept” or “I Agree” or some similar statement prior to being able to complete the transaction.  Click-Through contracts are often found in software products or on Web sites.

“Browse-Wrap” contracts are terms and conditions of use that to do not require the express agreement of a user.  They are often located in software or are posted on a Web site and may make some statement that indicates use of the software or Web site constitutes the user’s agreement to the terms.  Often such terms may not have been brought to the attention of the user.

Offer and Acceptance

As noted above, the formation of an enforceable contract requires that clearly stated terms and conditions of the proposed bargain be presented by one party and that the other party unequivocally communicate its acceptance to the offering party.

As with the introduction of other novel forms of communication (such as the telegraph or facsimile communications) there has been a period of time during the rise of the Internet as a mainstream form of communication during which the law has struggled.  The Internet and ability to communicate electronically via means such as electronic mail has introduced numerous complications that often results in situations where it is not necessarily clear if an offer has been made or whether acceptance of an offer has been communicated.  For example, can the now commonplace back and forth exchange of electronic mail between two parties “discussing” a contractual relationship result in the formation of a contract?  Although largely factually dependent, some courts have concluded that the answer is no.  See, for example Boon v. Boon[2]. What about the display of goods on a Web site; does that constitute an offer by the web site operator, or is it merely an invitation to treat?

In considering these and other related issues and concerns, it is important to understand that electronic communications are merely another form of communication – traditional contract principles and rules are not changed – rather the focus becomes how to achieve compliance with common law and statutory rules concerning contract formation.

Click-Wrap Agreements

Enforceability of Click-Wrap Contracts – Canada

Although there is little case law in Canada concerning “click-wrap” contracts, there is at least one Canadian decision that does provide some guidance to this issue.  In addition, many Canadian provincial jurisdictions have recently enacted electronic commerce statutes that to some extent address the issue[3].

In Rudder v. Microsoft Corporation[4], the plaintiffs commenced a class action lawsuit alleging breach by Microsoft of certain payment related terms of Microsoft’s MSN Member Agreement. The Member Agreement was an on-line “click-wrap” agreement that required each prospective member to scroll down through several pages (computer screen pages) of terms and conditions and then indicate their agreement to the terms by clicking an “I Agree” button before being provided with access to the services. Although the plaintiffs wished to rely on several terms of the Member Agreement, in bringing the action the plaintiff’s disputed the choice of law and forum selection clauses (the State of Washington) that the defendant Microsoft sought to enforce.  The plaintiffs asserted that because not all of the Member Agreement was visible at one time they did not receive adequate notice of such provisions and that as a consequence they were not enforceable.  The court determined that the Member Agreement was enforceable stating that scrolling through several pages was akin to having to turn through several pages of a multi-page paper contract and to not uphold the agreement “would lead to chaos in the marketplace, render ineffectual electronic commerce and undermine the integrity of any agreement entered into through this medium”.[5]

Enforceability of Click-Wrap Contracts – United States

One of the earlier decisions in the United States was CompuServe, Inc v. Patterson[6]. The CompuServ case involved, inter alia, a dispute by the defendant Patterson of personal jurisdiction of the federal district court for the Southern District of Ohio over Patterson. In considering the personal jurisdiction issue the court determined that the defendant did maintain sufficient contact with that state such to support the district court's exercise of personal jurisdiction over him, a finding that was supported, in part, by Patterson’s online contract (AOL’s “Shareware Registration Agreement” that incorporated two other sets of terms and conditions by reference) with AOL that the court determined Patterson had entered into.  The AOL agreement required Patterson to type “Agree” at various points in the document, “[i]n recognition of your online agreement to all the above terms and conditions”.

In Caspi v. Microsoft Network L.L.C.[7] a New Jersey court upheld the validity of a click-wrap agreement that, similarly to the Rudder case, contained scrolling terms and conditions that the user was presented with and had to accept prior to being provided access to the service (despite being able to select either an “I Accept” or “I Don’t Agree” button without having to scroll through all of the terms).  The court specifically noted in Caspi that registration by the user and use of the service could only proceed after the potential subscriber had the opportunity to review and agree to the membership agreement, including the provision that was in dispute.[8]

In the more recent case of Forest v. Verizon Communications Inc.[9] the question was whether a forum selection clause mandating that claims be brought in a particular jurisdiction should be applied to a class action suit involving plaintiffs’ attempts to register for and use Verizon’s DSL service. The customer users argued that Verizon “did not provide . . . adequate notice of the [forum selection] clause or its significance.” To become DSL subscribers, customers had to agree to all the terms of the subscriber agreement, including the forum selection clause. The clause was found in the final section of the main text of the Agreement, which was available through a scroll box on their computer monitors, where only a small portion of the document is visible at any one time. The top portion of the Agreement stated “PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY”.  The contract was entered into by the subscriber clicking an “Accept” button below the scroll box.  The court determined that users were provided adequate notice of the forum selection clause stating “The general rule is that absent fraud or mistake, one who signs a contract is bound by a contract which he has an opportunity to read whether he does so or not.” The court noted that in reading through the Agreement before it was accepted, appellant (and other consumers) would have inevitably discovered the forum selection clause. Furthermore, the court determined that the use of a “scroll box” in the electronic version that displays only part of the Agreement at any one time was detrimental to the provision of adequate notice. The court stated that “A contract is no less a contract simply because it is entered into via a computer.”

The jurisprudence in the United States currently tends to support the enforceability of “click-wrap” contracts that otherwise conform to and comply with the requirements of contract formation. Some courts have refused to uphold some click-wrap agreements in circumstances where such fundamental contract principles have not otherwise been satisfied, such as communication of the terms and conditions of the proposed agreement[10].

Browse-Wrap Agreements

The enforceability of browse-wrap contracts are somewhat questionable.  While some courts in Canada and the United States appear to have accepted that browse-wraps are, in certain circumstances, enforceable, other courts have concluded that such contracts are not enforceable as they fail to provide sufficient notice of the terms and conditions to the user (or even that any such terms even exist)[11]. However, in circumstances where sufficient notice of terms has occurred, conducted stipulated by a party as denoting acceptance of terms and conditions can constitute acceptance that leads to enforceable obligations.

The enforceability of browse-wrap is of particular interest because, notwithstanding the current legal reality that “click wrap” agreements may provide contracting parties with a greater degree of legal certainty with respect to confirming the consent of the other party to terms and conditions of the contractual relationship, beginning in the early days of electronic commence and continuing to a large degree today, “browse-wrap” appears to often be the choice of many on-line businesses and Web sites. Often less legal-oriented considerations govern such a decision, such as a reluctance by marketing departments to “force” its on-line customers through a legal process that perceptually lessens the users experience. It doesn’t help that business managers considering the issue will often find that their competitors and many other businesses have adopted a similar model (the “if they are doing it, it must be ok” philosophy). Thus, less intrusive, albeit arguably less legally effective, often wins the day with many electronic commerce business decision makers. Unfortunately, in this case, it would seem that less is not necessarily better.

Enforceability of Browse-Wrap Agreements (& Acceptance by Conduct) - Canada

            A recent Canadian case considered a browse-wrap style of agreement. Kanitz v. Rogers Cable Inc.[12] involved a proceeding under the Ontario Class Proceedings Act to stay a proposed class action by the plaintiffs against Rogers on the ground that an agreement between the parties provided for the arbitration of all disputes. The plaintiffs were subscribers to the Rogers@Home service providing for cable modem Internet access services. Activation of the services required a Rogers technician to attend at a new subscriber’s home to install the service. At the time of the installation, customers were required to sign the Rogers@Home service agreement (“Agreement”) which contained an amendment provision providing that:

“We may change, amend, modify, add or remove portions of the Agreement at any time. We will notify you of any changes to this Agreement by posting notice of such changes on the Roger@Home web site, or by sending notice via email or postal mail. Your continued use of the Service following notice of such change means that you agree to and accept the Agreement as amended. If you do not agree to any modification of this Agreement, you must immediately stop using Rogers@Home and notify us that you are terminating this Agreement.”

 

Rogers later amended the Agreement to include an arbitration provision and posted an updated Agreement, including the change, on the Rogers@Home Web site. Rogers also posted notice that the Agreement had been amended. The plaintiffs had launched a class action in connection with service outage problems associated with the Rogers@Home service and asserted that they had not agreed to settle disputes by arbitration. In the plaintiffs' view, Rogers was attempting to unilaterally impose arbitration on them by purporting to amend the Agreement without reasonable notice of the change to them and therefore Rogers was not able to rely on the arbitration clause.

            While noting that Rogers could have done more to bring the changes to the attention of the plaintiffs, the court in Kanitz concluded that notice of the amendment had been provided in accordance with the terms of the Agreement (i.e. via a Web site posting). The court determined that the effect of the amending provision in the original form of Agreement was to place an obligation on the customer who is interested in any amendments that Rogers may choose to make to the Agreement to check the Web site from to time to time (and further that such might involve a little investigative work on the part of the customer to locate the relevant parts of the Web site)[13]. Importantly, the court also stated that because the plaintiffs continued to use the service subsequent to the amendment to the Agreement and notice of same, under the terms of the Agreement they were each deemed to have accepted the amendments. In other words, the court appears to have accepted the proposition that terms posted on a Web site by one party that are not expressly agreed to by the other party may otherwise be found to have been agreed to by that other party by virtue of that other party’s conduct where that conduct manifests acceptance.

Enforceability of Browse-Wrap Agreements (& Acceptance by Conduct) - United States

Although some courts in the United States have upheld the enforceability of browse-wrap contacts, U.S. courts have more often held such contacts to be unenforceable.

In Register.com, Inc. v. Verio, Inc.[14] at issue was the enforceability of the terms and conditions on Register.com’s Web site concerning the conduct of “WHO IS” database searches.  The terms provided that by submitting a search inquiry the user agreed to the terms, however it did not require that the user expressly agree to them.  The appellate court upheld the terms indicating the defendant’s conduct constituted agreement to the terms.

            In another recent decision, Specht v. Netscape Communications Corp,[15] at issue again was the enforceability of an arbitration clause in Netscape’s end-user license agreement.  The license agreement was available by hypertext link asking users to review and agree to the terms before downloading and using the software.  No express agreement to the terms was required prior to downloading the software from Netscape.  In refusing to uphold the enforceability of the browse-wrap agreement the court emphasized the importance in contact formation of assent to the proposed terms of the bargain.  The lack of sufficient notice of the proposed terms when combined with the absence of assent was terminal to the enforceability of the Netscape terms.

            In the California case of Ticketmaster Corp. v. Tickets.com, Inc.[16] the court refused to uphold the enforceability of Ticketmaster’s Web site terms and conditions which Ticketmaster claimed had been breached by Tickets.com’s practice of deep linking to the Ticketmaster site. The Ticketmaster’s home page contained “Terms and Conditions” that were only accessible if the visitor to the site scrolled down to the bottom of the page.  The court refuted Ticketmaster’s claims that the posting of terms was analogous to “shrink-wrap licenses” and concluded that “It cannot be said that merely putting the Terms and Conditions in this fashion necessarily creates a contract with anyone using the web site”.

Other Enforceability Concerns and Issues: Unconscionable Terms and Conditions

The enforceability of contracts generally may be affected by particularly onerous or unfair terms. As noted by Waddams “It will be suggested, however, that the law of contracts, when examined for what judges do, as well as for what they say, shows that relief from contractual obligations is in fact widely and frequently given on the ground of unfairness, and that general recognition of this ground of relief is an essential step in the development of the law.[17]  Drafters of electronic contracts should thus bear in mind the doctrine of unconscionability to ensure that particularly onerous or unusual (and potentially “unfair”) terms are brought to the attention of the persons with whom they are contracting with or risk a court later determining such contracts to be unenforceable. In the world of Internet contracts it is easy not only to design Web site contract processes that create significant issues with respect to the adequacy of the presentment of terms, but also succumb to the temptation to create incredibly one sided commercial contracts that run the risk of running afoul of a court that is sympathetic to abusive contracting procedures and terms and a resulting claim of unconscionability. A pair of recent Canadian decisions is illustrative of this point.

In Robet v. Versus Brokerage Services Inc. (c.o.b. as E*Trade Canada) [18] Robet purchased 3000 shares through Versus’ Internet brokerage facility. In setting up his accounts Versus had forwarded a copy of a brochure and agreement to Robet who claimed he did not read it. The court found that, when read in combination, such terms constituted terms and provisions that as a whole were designed to primarily benefit and protect Versus.  A combination of computer systems glitch and human error resulted in Versus’ systems showing to Robet that 12000 shares had been purchased (and not 3000). Robet did not inform Versus of the error and sold 9000 shares to self correct such error. Numerous other customers were affected and Versus subsequently corrected the errors. However, in doing so Robet was then short 9000 shares and refused to cover the short position and subsequent $22,000 loss.  No notice of the problems was provided to customers, including with respect to Versus’ efforts to correct the problem. On the facts, the court found that Versus’ actions constituted a  failure which was so significant that it was beyond any contemplated error or provision of restricted liability under the parties’ contractual agreement (i.e. a total failure  to provide the service contracted for)  and that “it is a fundamental principle that exclusionary clauses ought not to be interpreted so broadly as to indemnify a party from failing to provide the very thing contracted for in the agreement.”  The failure of Versus to provide notices of the problems to its customers was an important factor in the view of the court.

Electronic Commerce Legislation

In order to facilitate electronic commerce and to address the legal uncertainties that exist many governments have initiated legislative reform by enacting electronic commerce legislation. One of the primary purposes of such legislation has been to eliminate the potential for discrimination between paper based traditional communications and records and those in electronic format. At an international level such efforts began with the United Nations Commission on International Trade Law (UNCITRAL)’s Model Law on Electronic Commerce adopted by the United Nations General Assembly in 1996. This model law serves as a model for counties to assist in the modernization and harmonization of laws relating to electronic commerce. In Canada, the Uniform Electronic Commerce Act (“UECA”) was adopted in 1999 by the Uniform Law Conference of Canada and was designed to serve as a template for the provincial implementation of the principles of the UNCITRAL Model Law in Canada. To date most of Canada’s provinces have enacted electronic commerce legislation based on the UECA.[19] 

In Ontario, the Electronic Commerce Act, 2000[20] (the “ECA”) is the legislation that governs the formation, use and enforcement of electronic contracts. Like all Canadian electronic commerce legislation that is modelled on the UECA, the ECA is designed to be enabling legislation that does not: purport to change general contract law principles; does not require that electronic documents or records be better than paper-based equivalents; and does not require the use of, or adherence to, specific technology (i.e. the legislation is “technology-neutral”). The ECA seeks to remove the legal uncertainty concerning electronic transactions and the legal effectiveness of electronic communications by making laws equally applicable to paper-based and electronic information and communications. In other words, under the ECA electronic communications and records become functionally equivalent to paper-based communications and records and should have the same legal effect.

The ECA contains several provisions that are of specific interest with respect to the issue of the formation and enforceability of electronic contracts. First, the ECA provides that the use or acceptance of electronic documents is not mandatory. In fact, consent is required[21]. Therefore some degree of caution is warranted with respect to the use of and reliance on electronic communications in order to ensure that a proper consent is obtained. The ECA does provide that consent may be express or implied. With respect to implied consent, consent “may be inferred by from a person’s conduct if there are reasonable grounds to believe that the consent is genuine and is relevant to the information or document”[22].  From a practical perspective, implied consent through conduct is a feature often relied on by on-line business in communicating and contracting with their customers[23].

Section 19(3) of the ECA makes it clear that a contract is not invalid or unenforceable by reason only of it being in electronic form.  Section 20 goes farther and contemplates the technical reality of the Internet whereby parties often use technology to facilitate the formation of commercial arrangements on their behalf through the use of “electronic agents”[24] by providing that a contract may be formed by the interaction of an electronic agent and an individual or by the interaction of electronic agents.

Section 19(1) of the ECA provides that an offer, the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed by (a) electronic information or an electronic document or (b) by an act that is intended to result in electronic communication, such as (i) touching or clicking on an appropriate icon or other place on a computer screen, or (ii) speaking.  Section 19(1) is consistent with the findings of the Rudder case discussed above. Therefore, in Ontario, persons can be relatively certain that, provided an on-line contract meets the legal criteria concerning the formation of contracts generally, the use of electronic means to manifest some element of the contract (for example, the offer or acceptance of the offer) will generally be held to be enforceable under Ontario law.

Consumer Protection Laws

Specifically with respect to Internet transactions, in conjunction with the establishment in Canada in 2001 of a model consumer protection law concerning Internet transactions (known as the Internet Sales Contract Harmonization Template) the Provinces of Alberta, Manitoba, Nova Scotia and Ontario (legislation passed, draft regulations pending) have implemented, and British Columbia is currently in the process of implementing, legislation to specifically govern consumer Internet transactions.  In Ontario such legislation has been included in the consolidation of six core consumer protection statutes into the new Consumer Protection Act 2002[25]. One important change is reflected in the draft regulations to this new legislation that to some degree are the result of concerns that the Ontario government appears to have had as a result of the Kanitz decision. In response to the approval by the court in that case whereby the terms of the subject contract permitted Rogers to amend the contract by posting the revised terms on its web site (assuming that Rogers customers could visit the site from time to time to in order to locate possible amendments) the draft regulations to the Consumer Protection Act have introduced changes that are designed to restrict or limit such a practice in respect of consumer transactions.[26]  For a more detailed review of consumer protection issues relating to electronic contracts and Internet transactions, please see a companion paper to this Session being provided by one of my co-speakers.[27]

Drafting Enforceable Electronic Contracts

The lessons learned from the increasing wealth of judicial decisions in both Canada and the United States considering the creation and enforceability of electronic contracts, when coupled with electronic commerce legislative direction, have resulted in the identification of certain steps and measures that drafters of electronic and online agreements can do (as well as to avoid) in order to achieve greater certainty that such agreements will stand as enforceable contractual instruments and will not wither and die on some judicial butcher block. Attached to this paper as Appendix “A” are tips and suggestions for drafting enforceable electronic contracts.

APPENDIX “A”

TIPS AND SUGGESTIONS FOR CREATING

ENFORCEABLE ELECTRONIC CONTRACTS

 

1.         General Requirements

Enforceability of electronic contracts will generally require:

·        sufficient notice of terms (particularly onerous terms specifically brought to attention)

·        sufficient opportunity of the user to consider terms and to decline

·        evidence of acceptance of terms that is sufficiently clear and positive as to demonstrate actual consent to be bound by terms

·        the absence of terms that are unconscionable or greatly unfair

2.         Specific actions to take and avoid to achieve enforceability

(a)        Presentment & review of terms and conditions:

·        Web site operators should ensure that notice of the existence of user terms and conditions are clearly presented to potential users of the web site

·        do not rely solely on legal terms that are merely posted on the web site (whether by hypertext link on the home page or otherwise buried on pages deeper in the site) and require the user to find and/or review on their own initiative (i.e. so-called “browse-wrap”)

·        users should not be able to agree to terms and conditions and/or be permitted to access and use the site and/or obtain products and services available through the site without having been presented with the terms of the proposed agreement and agreeing to such terms of use

·        ensure that the user’s ability to review terms and conditions is as simple and straightforward as possible – if terms are multiple pages, user should be able to easily navigate back and forth

·        all terms and conditions governing access and use (e.g. user terms, privacy policies, etc.) should be consistent and work together in a coherent manner

·        the terms and conditions should always be accessible to the user (i.e. before, during and after the review and acceptance process) and be capable of being retained by the user – consider automatically emailing terms to end user confirming terms and conditions immediately after users' agreement to same

(b)        Compliance with Legislation & Laws:

·        adherence to electronic commerce legislative requirements concerning formal requirements of electronic contracts (e.g. statutory obligations concerning writing, signatures, record retention, use of electronic agents, etc.)

·        if the law requires specific agreement or consent to a particular type of term (e.g. privacy legislation), the format of the consent / consent process should comply with that legal requirement

·        avoid terms and conditions that are unconscionable or greatly unfair (also includes avoiding practices / contracting processes and structures that might also be considered to be unconscionable or particularly onerous)

·        if some terms and conditions are, or could be construed as, unusual, unfair or unduly onerous, use efforts to highlight such terms and conditions (bold typeface, capital letters, etc.)

(c)        Third Parties:

·        it is not unusual for many web site operators to use the services of third parties in the performance of some web site services that is transparent to the user. Often the user ends up (unbeknownst to the user) on a third party site that remains branded by the original web site operator, but which has the different terms and conditions of the third party service provider, resulting in a potential contractual conflict of terms.  Therefore ensure the design of the web site contemplates this issue when using third party sites.

(d)        Acceptance of Terms

·        evidence of acceptance of terms that is sufficiently clear and positive as to demonstrate actual consent to be bound by terms (e.g. clicking a button or icon or typing in the specified words of agreement or rejection)

·        examples of clear words of agreement include  "I agree," "I accept," "I consent," or "I assent."

·        do not use vague or ambiguous phrases such as "OK", "Continue," "Next" "Submit," or "Enter."

·        together with the mechanism for indicating acceptance (icon, button, words, etc.) include a statement that indicates the consequences of acceptance. For example:

"By clicking on the “Yes'” button you acknowledge and confirm that you have read, understand and agree to be bound by the terms and conditions set out above".

·        consider requiring the user to type their name or provide some other (legal) form of unique identifier to assist in confirming identity and intent to be bound by the terms and conditions

·        avoid “acceptance by conduct” – depending on the structure and circumstances, such manner of acceptance creates significant risk of non-enforceability

·        the acceptance process should provide a reasonable method to avoid, or to detect and correct, errors that could be made by the user in the review and acceptance process

(e)        Changes and Records:

·        if circumstances warrant (significant transactions / risk) consider logging mechanism that tracks specific users assent to terms and conditions

·        consider version control issues concerning changes to the terms and conditions over time (i.e. so you can be certain which specific version of the terms and conditions a user will have agreed to)

·        avoid rights of one party to unilaterally amend the terms and conditions

·        ensure a notice mechanism of proposed changes to the terms and conditions exits and that provides means for ensuring the user’s acceptance of the proposed changes

·        compliance with legal requirement for record keeping and form of records (as noted above) if records to be kept in electronic format.

(f)         Consequences of Non Acceptance:

·        if the user does not agree with the presented terms, such non-agreement should result in the user being denied access to whatever the click-through agreement is granting the user (i.e. without agreement to the terms, the user should not be able to complete the transaction).