The end of shrink-wrap terms?

Our clients and delegates are very familiar with Devant's 'No Small Print' policy. Our philosophy is that if you would like your customers to comply with your terms, you should do everything you can to make the terms easy to read and understand, and to ensure that your clients read them before entering into a relationships with you.

The antithesis of this is the 'shrink-wrapped contract' or the 'shrink-click terms' when buying online. This is what you get when you sign up for a new online service, or buy off-the-shelf software, and your use of the service/software is deemed to indicate your acceptance of the terms and conditions.

Devant has been working with its clients for years to help them push back the tide in this area, and it seems that (in the US at least) legal opinion is now catching up with us. Jennifer Granick, Executive Director of the Stanford Law School, highlights two recent US court cases where the terms of such shrink-wrapped contracts have been overturned.

One of the cases Jennifer references in her article illustrates the risk of terms that the vendor can amend unilaterally on their website. From a logical point of view, most of us can see that it is difficult to comply with a contract if its terms have changed while we weren't looking. Given that one of the key principles of English contract law is that there should be a 'meeting of minds' between the contracting parties, it's hard to see how such unilateral contract amendments could possibly be enforced.

So far, that hasn't stopped many web-based businesses from operating on this basis. Maybe these cases will change things for the better...