I’ve been told by a U.S.-based partner that we cannot use Web-based click-through for software licensing (registration) process (whereby the end user agrees with the software licensing agreement).
As that is the info they got from their lawyer, I don’t know all the details. In any case, the fact that we cannot use click-through licensing process is very painful - we have to print out EULAs and chase customers to sign, then mail the docs to the U.S.
Now, I’ve noticed that many local Web sites and even e-commerce sites make use of such “I Agree” Web-based contracts, so I’m thinking either those are somehow different from our software licensing agreements (I think that’s unlikely), or my American partner got wrong info. Which one is it?
I’m sure there’s no law or regulation in Taiwan that states that click-wrap or shrink-wrap agreements are, or are not, enforceable in Taiwan, just as I don’t believe there is in the US. But in the US there is substantial case-law on the subject and US courts have overwhelmingly found such agreements enforceable. I read some of those cases a couple of years ago and I’ve forgotten all the specifics, but I remember that there are varying degrees of enforceability of click-wraps based on their design. For maximum enforceability, it should be designed so the user must scroll through all the contract language before coming to the “I accept” button. As with all contracts, important language should be in bold or all caps, and one can even install multiple “I accept” buttons at various key points in the agreement. I believe the cases mention other tactics that I’ve presently forgotten.
As I said, in the US the courts have held such agreements to be enforceable. But, Taiwan is a civil law jurisdiction, not common law like the US, so case law generally lacks precedential value (except for a very few decisions published by the Judicial Yuan). So even if a Taiwan court discussed this issue, and I don’t know if they have or not, the decision most likely wouldn’t be binding. So I’m not sure what your friend based his opinion on.
That’s my initial opinion, but I’m curious about the subject and will look into it further and report back to you.
On a personal note:
a) During my stay in Taiwan, I rarely needed advice about local laws and regulations
b) When I did find information I needed, it almost always was a disappointment - not enforcable, not existing, not implemented or such.
Of course this finding is biased (the sore loser syndrome - people usually don’t attempt to learn about the laws unless they have a problem they can’t solve) - but I can’t help the feeling there’s a lot of room for improvement…
I haven’t researched the issue further, yet, but I’d be very surprised if such agreements were unenforceable in Taiwan. The country aspires to be the Silicon Island, the e-hub of Asia, and so forth, has signed on to APEC e-agreements, has initiated countless programs for e-commerce, e-government, e-education, etc., has passed an Electronic Signature Law, and click-wrap and shrink-wrap agreements are standard practice in this age. They would truly have their heads in the sand if they didn’t recognize such agreements.
Have you had time to look at this thing?
I searched the Internet for 2 hours and found only one page that discusses that (no wonder so few are concerned, considering local piracy levels) cyberlawyer.com.tw/alan4-401.html
According to this, it’s enforceable, but maybe not (what a surprise).
I get the feeling it’s legally binding but the legality of it could be challenged in court. It seems there’s been no legal precedent and there’s no law or regulation that specifically mentions web-wrap contract (EULA).