Electronic forms of contract conclusion in the software sector

In the digital world, various forms of electronic contract conclusion have developed, which are used in particular in the area of software use and online trading. Three key concepts are the click-wrap agreement, the shrink-wrap agreement and the browse-wrap agreement. These forms of contract aim to simplify and standardize the conclusion of contracts in the digital environment, but also raise legal questions.

1. click-wrap agreement

A click-wrap agreement is an electronic form of contract conclusion in which the user declares their agreement to the terms of use or general terms and conditions (GTC) by clicking a button or ticking a box. Characteristics:
– Active action by the user required
– Terms of use are usually displayed before the click
– Frequently used for software downloads, app installations or online purchases Legal classification:
In most jurisdictions, click-wrap agreements are recognized as legally binding if certain conditions are met:
– Clear and conspicuous presentation of the terms
– Possibility for the user to read the terms before consenting
– Clear act of consent Challenges:
– Ensuring that users actually read the terms
– Proof of consent in the event of a dispute
– Adaptation to different devices and platforms

2. shrink-wrap agreement

A shrink wrap agreement refers to license agreements that were traditionally contained in software packaging. The name is derived from the shrink wrap in which the software boxes were wrapped. Characteristics:
– License terms are included in the product packaging
– Opening the packaging or using the software is considered consent
– Today often in the form of license terms that are displayed during installation Legal classification:
The legal validity of shrink-wrap agreements is controversial and varies depending on the jurisdiction:
– Recognized as valid in some countries if the customer has been made aware of the existence of the terms prior to purchase
– Considered problematic in other jurisdictions due to lack of explicit consent Challenges:
– Lack of opportunity for the customer to review the terms prior to purchase
– Difficulties in returning after opening the package
– Adapting to digital distribution models

3. browse wrap agreement

A browse-wrap agreement is a form of contract in which the terms of use are available on a website without the user having to actively agree to them. The mere use of the website is interpreted as acceptance of the terms and conditions. Characteristics:
– No active act of consent by the user required
– Terms are often accessible via a link at the bottom of the page
– Frequently used on information websites or online platforms Legal classification:
Browse-wrap agreements are the most controversial in legal terms:
– Considered less binding than click-wrap agreements in many jurisdictions
– Validity often depends on the conspicuousness of the link to the terms
– Courts consider whether an average user could recognize the existence of the terms Challenges:
– Proof of actual notice by the user
– Balancing between user-friendliness and legal certainty
– Adaptation to different device types and screen sizes

Conclusion and outlook

The various forms of electronic contracts reflect the attempt to reconcile legal bindingness with the requirements of the digital age. While click-wrap agreements are generally considered to be the most legally secure, shrink-wrap and especially browse-wrap agreements remain controversial. It is important for companies to carefully consider the legal implications of these forms of agreement and seek legal advice where necessary. The choice of the appropriate form depends on factors such as the type of product or service, the target group and the specific legal requirements in the relevant jurisdictions. Future developments in this area could give rise to new forms of electronic contracting, possibly using technologies such as blockchain or biometric authentication to further increase legal certainty. At the same time, data protection aspects and the demand for greater transparency are likely to continue to influence the design of these forms of contract.