Company Bound By Click-Wrap License Agreement Even Though Click-Accepted By Vendor

A federal court recently held that a company was bound by unfavorable terms in a click-wrap license agreement, even though an employee of the software vendor installed the software and click-accepted the license agreement. (Via Viente Taiwan LP v. United Parcel Service Inc., E.D. Tex., No. 08-301, 2/17/09). Accordingly, the forum selection clause in the license agreement was enforceable, and the customer-licensee was required to litigate in the vendor's preferred location of Atlanta, rather than Texas, where the customer brought the suit.

For parties to enter into a valid contract, the following elements must be present: (1) an offer; (2) acceptance; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. The customer-licensee argued there was no meeting of the minds because it was never able to review, and thus agree to, the terms of the license agreement. Rather,