Mitchell Comments On “Click to Agree” Contracts

Mitchell Intellectual Law

Mitchell IP Law founder James Mitchell was recently asked by WOTV to comment on a “click to agree” contract used by a vendor. A “click to agree” contract is the type we typically find when doing business on the web or downloading software to our computers. Most people simply “click to agree,” without reading these contracts.

Mr. Mitchell points out in the television interview that such contracts are enforceable, except to the extent that they have provisions which are “unconscionable,” or which “violate public policy.” Thus for example, a provision prohibiting a customer from saying anything negative about the company is likely to be found unenforceable as being contrary to our First Amendment right to free speech. On the other hand, a provision requiring a customer to first contact the company to discuss complaints before making them public may very well be enforceable where the company is given only a limited period of time within which to respond and satisfy the customer’s complaints, before the customer is entitled to make them public.

On the other hand, customers must be very careful to avoid characterizing their complaints in a libelous manner. It is one thing to provide a factual statement of one’s complaint, as for example the company “promised service in two weeks and still has not performed after two months.” It is quite another to simply say that the company “gives terrible service,” or that the company is “crooked.” There is a line between a legitimate complaint and statements that are derogatory and scurrilous comments which may be actionable as trade defamation or trade libel.

Use the following link to view the interview of Mr. Mitchell.