Detailed Analysis of a Software License Clickwrap Contract

This assignment analyzes a software license agreement presented as a clickwrap contract. The analysis covers the agreement's key components, including the parties involved (Pro Bono Net, Inc. and the Licensee), the scope of the license, and the role of third-party software. The assignment addresses specific questions about the agreement's terms, such as user eligibility, definitions, and limitations of liability. The student identifies ambiguities in the agreement, particularly regarding the right to claim damages for breach of duty by Pro Bono Net. The analysis also explores the application of the 'contra proferentem' rule to interpret ambiguous clauses, focusing on clauses related to third-party software, limitation of liability, and no legal advice. The student considers the implications of these clauses and suggests how a court might interpret them. The assignment concludes by addressing the standard form of contract rule and its impact on the agreement's terms.

Running head: CLICKWRAP CONTRACT
CLICKWRAP CONTRACT
Name of the Student
Name of the University
Author Note

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CLICKWRAP CONTRACT
Question 1:
Below mentioned is a software license agreement between the software company and
its users. The user can be authorized or get the license to use this software only after agreeing
(by clicking the "accept” button and or by downloading the software or by otherwise using
the software) with the terms and conditions mentioned in the agreement. This agreement also
states that persons who are of the age of 18 years or more are authorized to use this software.
(Pic 1: Software License agreement)

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CLICKWRAP CONTRACT
(Pic 2: Software License agreement)

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CLICKWRAP CONTRACT
(Pic 3: Software License agreement)

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CLICKWRAP CONTRACT
(Pic 4: Software License agreement)

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CLICKWRAP CONTRACT
Question 2:
This software license agreement is between Pro Bono Net, Inc, referred to as 'PBN'
and any other individual or type of person referred to as the 'Licensee' in the ‘definitions’ part
of clause 1. The term 'Person' includes an individual, corporation, partnership, joint venture,
limited liability company, government authority, unincorporated organization, trust,
association or other entity- vide ‘definition’ part of clause 1, who are intended to use this
software by downloading or installing the same for their personal use.
Question 3:
As per the ‘definition’ clause (2) in the software license agreement, any party other
than the ‘PBN’ and ‘Licensee’, who may incur interest in this agreement, shall be referred to
as 'third party'. 'Third party' can only be HotDocs Corporation’s HotDocs Professional and
the Center for Access to Justice and Technology’s A2J Author, whose content, data,
software, and other materials can be included in the software referred in this agreement. As
per the Limitation of Liability clause (Clause11) PBN or its affiliates, or any of its licensors
or service providers, cannot be held responsible for any use, delay, inability to use the
software, loss of services or profits by the use of the software. Therefore, the Licensee cannot
hold the PBN responsible for any failure of the software caused to any third party. However,
as per the ‘third-party software’ clause (Clause 3), the ‘licensee’ is bound to comply with the
terms of the ‘the third-party software’ that are different from the terms of this software
license agreement and breach of such third-party licenses is also the breach of this agreement.
As per the ‘Miscellaneous clause’ (Clause 14), any dispute that may arise between the
parties under this agreement shall be governed by the internal laws of the State of New York.
This clause further states that parties amicably decided that every suit, action or proceeding
of a dispute under this agreement should be placed in the courts within the state of New York.

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CLICKWRAP CONTRACT
Question 4:
This agreement is written in plain English. However, there are certain terms that are
used in legal parlance for this agreement. They are mentioned below;
Under the ‘Definition’ clause:
 Documentation includes each document and materials related to the Software, user
manual, helps files, instruction brochures and other materials stating the functionality,
installation, testing and operation of the software and each of which provided by
PBN.
 Intellectual property rights mean all proprietary rights regarding patent, trade
secrets, registered or unregistered trademark and copyrights of any software, source
and object codes.
Under License grant and scope:
The term ‘license’ includes the licensee’s rights and duties, limitations of use (briefly
discussed under the ‘User restrictions’ clause) regarding the software provided by PBN.
Third-party software:
This clause states that every licensee while using the specific third party websites as
mentioned in the contract, must comply with all terms and conditions mentioned in the third-
party licenses and breach of such terms would be reflected as a breach of the main software
licenses agreement.
Term:
The agreement will remain in force unless it is terminated as per the agreement.

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CLICKWRAP CONTRACT
Warranty:
The software provided by PBN is without any warranty and delivered in its best
possible form.
Limitations of Liability:
This clause states that PBN will not be responsible for the default of the software use
or any profit or loss occurred by the use of this software to the licensee or third party.
Question 5:
There is a certain ambiguity in this agreement regarding the right to claims damages in case
of breach of duty by PBN.
Under the ‘third-party software’ clause, this agreements permits specific third parties
to set out their terms regarding the use of the software and every user have to agree to those
terms and conditions before accessing the software and breach of which will be termed as
breach of the main master software license agreement. However, under the ‘limitation of
liability’ clause PBN including its affiliates, licensors or service providers is not responsible
for any dispute regarding the use of software, lost revenues and profits due to the use of
software, interruption in the use of software, malfunctioning or failure of the software to
transfer and transmit information or other specific issues mentioned in the contract. This
clause further states that PBN is not liable to any consequential, punitive, exemplary or any
other kind of damages for breach of duty under this contract arising out of any contractual or
tortious liability. The liability will not even arise in cases of foreseeable damage or any other
damage about which PBN is already aware of.

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CLICKWRAP CONTRACT
Under this agreement incidents or reasons under which PBN can be held responsible
are not properly mentioned. The ‘No legal advice’ clause state that there is no fiduciary
relationship between PBN and Licensee, nor there exist any guarantee or warranty for the
accuracy of the software or document created by the software. Therefore, the licensee has no
right to sue PBN in case of default under these grounds. However, under 9© of ‘Term and
Termination’ clause, it is mentioned as either party can terminate this agreement upon
material breach but the type of material breach is not clearly mentioned. Though the
‘Miscellaneous’ clause contains the right to institute a suit in cases of breach, its authority to
use by the Licensee is not clearly stated under this agreement.
Question 6:
Under the standard form of contract rule, one party is at a dominant position to set the
governing rules of a contract and another party is at the adverse position in case of
negotiation of the contractual terms (Yasmin, 2016). The adverse party is at a take it or leave
it position. However, these contracts are not illegal by itself, but there exists a possibility of a
lack of good conscience due to the biased terms set out by a dominating party while setting
out the terms and conditions of the contract (Fish, 2019). In the cases of ambiguity in terms
of the contract, the court prefers to adopt the principle of 'contra proferentem’ against the
party drafting or setting the contractual terms (McCunn, 2019). Under this principle, any
clause in respect of which ambiguity incurred must be interpreted by the court in such a way
that it will act adversely to the interest of the person making or introducing such ambiguous
terms (Canada Steamship Lines Ltd v. The King).
In this agreement, the ‘third-party software’, ‘limitation of liability’, ‘no legal advice’
and ‘term and termination’ clauses, which restricts the liability of PBN, can be interpreted
with contra proferentem rule. In cases where the liability of PBN is restricted for the use and

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CLICKWRAP CONTRACT
malpractice of software up or other reasons (mentioned under the ‘limitation of liability’
clause), to such a limit where the licensee is involved in any material breach or breach of the
confidential information of the document created by the software. In cases of other technical
disturbance and non-performance of the service for which the software is installed by the
user, the PBN can be held liable. In addition to this, in the absence of an effective date or
commencement date of the contract, it can be assume that the downloaded date of the
software license by the ‘Licensee’will be the effective date.

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CLICKWRAP CONTRACT
Reference:
Canada Steamship Lines Ltd v. The King [1952] AC 192.
Fish, J. D. (2019). Unfair or Unconscionable. The University of Chicago Law Review, 86(7),
1941-1980.
McCunn, J. (2019). The Contra Proferentem Rule: Contract Law’s Great Survivor. Oxford
Journal of Legal Studies, 39(3), 483-506.
Yasmin, M. (2016). Legal liability in standard form of contract. International research
journal of engineering, IT & scientific research, 2(9), 51-58.