Residencial Mac-Kay Las Condes

Wrap Agreement Traduccion

Wrap Agreement Traduccion

16/10/2021 • Under: Sin categoría


– Evaluation of the contract: Clickwrap implies the acceptance of a predisposed content contract; this is the case of the contract concluded by the exchange of e-mails, in which it is possible to negotiate each of the clauses in a timely manner. Therefore, the general theory of contracts with general conditions applies and therefore terms that are not considered unfair apply. The case of Clickwrap contracts already offers little doubt from a legal point of view as to the link they establish between the parties and the applicability of the agreements. Following the amendment of Law 34/2002 of 11. July on information society services and electronic commerce (hereinafter «LSSICE») in articles 1.262 of the Civil Code and 54 of the Commercial Code, there is no doubt that «there is consent, since acceptance manifests itself», and it is precisely the act of «clicking» that precedes the necessary and sufficient manifestation of consent to a liability contract with general conditions. It is true that it may not be correct to align «liability» with «contractual consent» as this implies free acceptance and liability for a predisposed clause in the Terms and Conditions is only voluntary (unconsumed) acceptance, but we will not enter into this idea. We considered it important to make a preliminary analysis of what Clickwrap are and their creation, because we believe that the meaning of the case raised is precisely that in the judgment it resolves, this type of agreement is legally valid. In browsewrap contracts, the situation cannot be so peaceful. First of all, the Terms of Use are a contract that binds the parties and regulates transactions on the Site and that exists, on the one hand, for the consent to be considered valid (Art. 1.261 and 1.265 CC), but also for the requirements of transparency and inclusion imposed by the Law of the General Conditions of Contract in its article 5, can be completed. In 1996, we had the «ProCD, Inc.c. Zeidenberg», in which the argument of the results of the contract was abandoned and in which the facts were as follows.

ProCD created a telephone database of more than 95 million records and commercialized it by limiting a certain amount of its use through a shrink film agreement in product packaging. The defendant purchased the program, in turn prepared the program for a new database, in which he combined ProCDs with other databases, founded his own company and offered access to his new database via the Internet at a lower price than the ProCD database. The Western District Court of Wisconsin noted that zeidenberg did not expressly agree to the terms of use of the program set forth by ProCD when signing the contract, as it could not read its written text until it had opened the packaging that contained it; the court found that the defendant was not bound by the User Agreement because it did not have the opportunity to negotiate, oppose or revise the proposed User Agreement prior to purchase and did not expressly accept its terms after it had been met. However, on appeal, it was found that the box containing the product contained a legend referring the buyer to the contract of use it contained and that this contract of use was binding under the Unified Commercial Code. This code states that the parties can perform a contract in any way that proves their consent, for which the court has stated that the seller «as master of the offer can invite acceptance by behavior and propose restrictions on the type of behavior that constitutes acceptance.

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