Re: manifest assent & which version?

["David Mirchin" <DMirchin@Silverplatter.com>]

Carole,

In response to your question, when we transitioned to an electronic
license, we did explicitly address our customer's interests regarding
individually negotiated licenses.  Any terms which are negotiated take
precedence over the standard terms.

We have provided that at the top of our license. It states:

"A Customer's manually signed license agreement, if applicable, will
supersede any conflicting terms in the license below."

You can rest easily.

__________________________

> David Mirchin
> Vice President & General Counsel
> SilverPlatter Information, Inc.
> Norwood, MA  02062

Carole Richter wrote:

> Speaking as someone without the benefit of legal experience in contract
> law I'd like to make two observations. First, I heartily agree that your
> point "this actually is tricky when a person is clicking on behalf of an
> institution--the publisher must be able to argue that the click should be
> attributable to the institution" would seem to be VERY tricky indeed. I
> would of course argue that the person(s) responsible for paying the
> invoice represent 'the institution.'
>
> But more important, we have a negotiated and signed license with
> Silverplatter, because there were a few provisions we wanted to have
> changed. I'm curious about your view as to whether this kind of agreement
> can be superceded by the fact that users might click through a posted
> license agreement on the Web?
>
> I would hope, though it may not be the case, that the institution is
> agreeing only to the version that is brought to the attention of a clearly
> responsible party. This should be relatively simple to determine, because
> most information providers require contact name(s) and information when
> subscribing to an electronic resource. How I wish our institutions were so
> comfortably staffed that someone could be available to constantly monitor
> changes to online licensing in order to determine that no one is agreeing
> to a newly posted condition simply by using the provided resource!
>
> Carole Richter
> Electronic Resources Coordinator
> University of Notre Dame Libraries
> (219)631-8405
> richter.8@nd.edu
>
> At 04:30 PM 6/22/2000 EDT, you wrote:
> >I've been following with interest the conversation on manifest assent and
> >have the following observations:
> >
> >1. UCITA didn't change the law on clickthrough agreements.  Every case
> >since 1996 (and there have been about a dozen by my count) has held that
> >clickthrough agreements are enforceable.
> >
> >2. As for acceptance by conduct.  UCITA again has not changed the law
> >here. If you read the comments to Section 112 of UCITA
> >http://www.law.upenn.edu/bll/ulc/ucita/ucitacom300.htm, it explains that
> >it tracks Restatement (Second ) of Contracts sec. 19.  The Restatement,
> >which tracks the common law in turn, says that "The manifestation of
> >assent may be made wholly or partly by written or spoken words or by other
> >acts or by failure to act."  In short, conduct has always been a way that
> >contracts are formed.
> >
> >So, in a simple example, I order a tuna sandwich on rye. But my tuna
> >arrives on whole wheat.  I eat it. I can't then claim that there was no
> >contract.  I have accepted by conduct.
> >
> >Of course, not just any conduct will do.  And UCITA clearly provides this.
> >
> >First, the publisher must call the contract to the attention of the user.
> >Second, the user's actions must clearly indicate that the user agreed.
> >Third, the actions must be clearly attributable to the user.
> >
> >So applying these standards to this situation, I believe that a
> >clickthrough agreement does bring the contract to the attention of the
> >user; the user's clicking does show agreement; and then--this actually is
> >tricky when a person is clicking on behalf of an institution--the
> >publisher must be able to argue that the click should be attributable to
> >the institution.
> >
> >Conversely, I do agree with those who have said that terms and conditions
> >which are hidden on some page are not appropriately brought to the
> >attention of the user.  And frankly, I think those publishers may very
> >well lose out (as Ticketmaster did in the Tickets.com case in March) in
> >trying to enforce those website agreements.
> >
> >3. Which version of the clickthrough agreement is binding?  A very good
> >question.  The ease by which online agreements can be changed is a
> >landmine for a publisher, just as it is for the user.  If there's ever a
> >challenge, the publisher will need to prove which agreement was clicked.
> >At SilverPlatter, we've dealt with this issue in two ways: First, we date
> >the license agreement.  So if you go to our site, you can see that the
> >most recent draft is from July 12, 1999. Anyone who clicked after that
> >date agreed to that form.
> >
> >Second, we print out a paper copy of the license agreement from our
> >website www.silverplatter.com/license on the first day of each month. It
> >has a time & date stamp on the printout.  In that way, if someone clicks
> >on an agreement on June 22, and we have a printout from June 1 and July 1,
> >and there have been no changes, we can clearly prove which version someone
> >agreed to.  If there's been a change, then the worst situation for us is
> >that the user could argue that one of the two agreements is applicable
> >(and they could try to argue that the one more favorable to them is the
> >applicable one.)
> >
> >
> >Hope this helps.
> >
> >David Mirchin
> >Vice President & General Counsel
> >SilverPlatter Information, Inc.
> >Norwood, MA  02062