From wired.com Courts Turn Against Abusive Clickwrap Contracts.
It may come as a supprise to the companies/lawyers who draft click-wrap and shrink-wrap contracts. However for the rest of us the act of buying a box, being told by said box that should we open said box we’d be bound by the contract contained within said box hasn’t made the slightest logcal sense ever.
I’m not going to retell the points that someone else clearly more knowledgable and experienced on the subject from a legal point of view has already writern. Simply take the link above. However I will add some of my own thoughts.
If a click-wrap/shrink-wrap contract costs more in legal fees (actual or otherwise) to write than it does for the product. It should be invalid.
Look at it this way.
Say you have a $100 product. Your company expects to sell a million units of said product. Each sale will net you $1 profit. Thus your total profits are $1 mil.
Then lets say each unit comes with a contract which cost you $1000 in legal fees to produce so you don’t get “screwed” by your customers. Lets assume the actual writing of it was seperate.
Thus it is expected that your customers would be required to spend $1000 in legal fees to make sure they aren’t going to get screwed.
Thus your customers have four choices. Spend $1000 for no product. Spend $1100 for your product.
Thus a customer is likely to simply spend the extra $100 for your product irrespective of their legal advise.
I said they had four choices and here’s the other two.
Using the above they can assume that if they pay for legal advise they’ll ignore it and pay for the product. Thus a single choice. Pay $1100 for your product and ignored legal advise.
However if they don’t pay for legal advise they have two choices. They can have no product for $0 or your product for $100 and use their own judgement of which is more than they had with ignored legal advise and inability to use their own judgement.
In effect by drafting an expensive, comlicated contract far in excess of the cost of purchaing your product, you encourage your mark customers to ignore it when purchasing your product and in effect have never sold your product with the contract but in the absence of it.