December 5, 2020

Click-Wrap Agreement South Africa

Filed under: Uncategorized — dpk3000 @ 9:08 am

These types of agreements are of particular concern because of the proliferation of unse negotiated online agreements, particularly in the 21st century, where e-commerce facilitates the conclusion of binding and often commercially complex cross-border transactions at the touch of a button, without fully understanding the terms of these agreements, particularly when it comes to exclusively choosing judicial agreements/clauses. Although many of these agreements have not been reviewed by South African courts, ECTA gives them explicit recognition and provides guidance that helps determine their applicability. Finally, I believe that the Convention is a great and necessary step forward. While South Africa is not currently a party to the agreement, many of South Africa`s trading partners and, in light of the above, international justice practitioners still think of their clients, especially when they face the exclusive choice of justice clauses in an agreement, and not just under the guise of “unne traded” agreements, so that clients can shrink or include their agreements. Much has been said about how to limit the scope of the convention to ensure that unse negotiated agreements, such as the Click-wrap and Shrink Wrap agreements, are excluded from the agreement in order to create even the conditions for competition. Another problem in dealing with these types of unse negotiated agreements is that “consumers” of the service or product are considered “businesses” since the definition of “consumer” is formulated very narrowly under the Convention. As a result, stronger and larger companies, when entering into contracts with “consumers” through click-wrap and shrink wrap agreements, can take advantage of the narrow wording and essentially choose a state with laws that can work in their favor as an exclusive forum. Section 26 (1) of the ECT Act states that the agreement is valid after acceptance has been received and that the supplier does not need to confirm receipt. For the purposes of the ECT, a contract is entered into at the time and place where the supplier receives the acceptance message and applies to electronic transactions, including e-mail and SMS. Section 22 of the ECT Act states: (1) An agreement is not legally binding and has no effect simply because it was concluded in part or in full by data communications. (2) The agreement reached by data statements is reached on the date and place where the offer was received by the supplier. Similarly, shrink-Wrap agreements are licensing terms contained in or in a software box, and again, negotiating or even discussing the terms it contains is not an option. The conditions of these are designed in most cases well before leaving port for shipping, and as any good lawyer would be in favor of their client the licensee/seller of the product.

Shrink Wrap and Click Wrap (also called Web Wrap and Navigation Wrap) all refer to how contracts are concluded, more than their content. The intended simplicity of the convention, as noted in the above points, has resulted in the practical review of the Convention that the application of the convention is somewhat more complex than simplistic, since the scope of the convention, when interpreted holistically, would include the exclusive choice of judicial agreements in unsealed agreements, such as the online agreements “Click Wrap” and “Shrink”. While there is still a great deal of uncertainty about online terms and their applicability, Internet users would be well advised to see the “I accept the terms” button on the same day as signing a lease.