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Enforceability Of Clickwrap Agreements In India

Enforceability Of Clickwrap Agreements In India

”Clickwrap Agreement” sounds like one of those obscure legal terms you`ll never come across in real life unless you`ve done something wrong, but there`s a good chance you agreed to several Clickwrap deals last week! When it comes to click-wrap agreements, acceptance by the counterparty is the most important thing. In short, a click-wrap agreement cannot be concluded, unless the party does not click on the ”I agree” or ”OK” buttons and mentions them in the dialog box and thus gives a valid acceptance. As the name suggests, a Click-Wrap agreement is only formed when the other party ”clicks” on the agreement. As soon as the agreement is clicked, the agreement is automatically circled and formed. Therefore, acceptance plays an important role in creating an online click-wrap agreement. In a 2017 ruling by the Income Tax Tribunal, Clickwrap agreements were discussed. In Ddit (It) 3(1), Mumbai v Gujrat Pipavav Port Ltd., the court expressed serious doubts as to the applicability of such clickwrap contracts. The current case dealt with issues of copyright infringement, but a reference to Clickwrap`s agreements was necessary in the context. The court referred to the doubt in this case in the following way: however, the Indian judicial authorities did not rule on the legal status of such Clickwrap agreements. In general, where there had been gross inequality of bargaining power, contracts were described as unscrupulous (Central Inland Water Corp v. Brojo Nath). If we respect the principles that were discussed in the Brojo Nath case, such mass contracts would not be valid.

But this should not be the case. In addition, in Clickwrap agreements, one party (the party whose terms you agree to) usually has more bargaining power than the other (you). This is because you have to accept your Clickwrap agreement in order to be able to use their services. Such imbalances in power sometimes tend to tip the balance of justice in favor of the more vulnerable party. In Browse Wrap`s agreements, continued use of the website or download of the software is construed as consent. At this point, it is important to mention that the courts that have debated the validity of such agreements have mainly held that the validity of the Browse-Wrap agreements was based on whether the consumer communicated the general conditions of sale before using the website or downloading the software. The courts have also ruled that an unsigned document is not subject to stamp duty.9 As a result, a physical document requires a person`s signature to be considered exported and therefore subject to stamp duty. However, as stated above, an electronic record can only be properly signed by affixing a digital signature, and since clicking on a ”I agree” tab is not a valid electronic signature in accordance with computer law, click-wrap agreements are not ”signed” and are therefore considered executed.

Therefore, a click-wrap agreement is not an ”instrument” subject to stamp duty within the meaning of the Indian Stamp Act or other similar stamp legislation currently in force in India. . . .

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