Standard form of Contract:

Printed form
drafted by one of the parties
the party engages in the same volume of transactions on regular basis
imposes as take it or leave it basis
ii) Primary obligation of the other party will be to pay money
iii) Companies use this to exclude their liabilities and reduce risk. Also reduce the cost of
attorney and drafting different contracts (as standard form exists)
Considerations:
I) Nature of document --If can be considered as integral part of contract--- check if signed or
unsigned
It has to be document which can be reasonably considered and just not a printed receipt
ii) Adequacy of document:
a) whether enough is done to bring the things mentioned in the contract to be brought to
the notice of other party
b) When it is brought to notice: it should be brought to notice before agreement is made
Terms written on reverse of a receipt will not form a contract unless it is signed by the other party.
In case of absence of this, proof should be there where these are brought to the notice of other party
before agreement was signed
Principles of Interpretation:
a) Is the consent given real?
b) Manner in which the terms were presented to the contracting parties. Style of writing positioning
of terms etc becomes important.
Nature of assent and characterization of assent at formation stage have been understood by courts
hence standard contracts differ from general contracts in enforceability
Different Approaches:
Consent based approach
Circumstantial Test--Encourages to look at the comprehensive picture of the contract


Types of agreements:
The shrink-wrap agreements are those that contain the terms and conditions to the contract in the
packaging of the product itself as in the case of many software programs that usually come in clear
plastic package This unsigned license agreement comes into effect when the consumer opens the
package, since the act of opening or tearing or any such outward manifestation implies consent to
the terms and conditions enclosed therein.
Click-wrap contracts are generally online contracts where the user is supposed to click the I Agree
or I Accept icon to indicate his assent (much like a handshake or a signature) to the standard terms
and conditions, and only then has access to the software.42 Therefore the term click-wrap
originates from the fact that assent to the online contract is demonstrated with the click of a mouse
on an on-screen icon.
Browse-wrap agreements are frequently used on websites and do not appear on the screen until
user accesses the terms by clicking on a hyperlink. Product can be used without ever viewing the
terms of the agreement, and users may not even realize that a contract is being formed.
Best practices in mind while deploying E-Contracts:
1 .Online agreements should be as conspicuous as possible.
2 .Whenever possible, use click-wrap rather than browse-wrap and the viewing of the terms should
be mandatory. This could be accomplished by greying out Accept until the user has scrolled to the
bottom on the agreement.
3 A notice should be included near the Accept button to make the user grasp the signicance of his
actions such as by clicking Accept you are entering into a legally binding agreement.
4 Keep a record of the moment that the user clicked Accept
Formation of contract and mail box rule:
Contract is formed when acceptance is communicated to offeree
The communication of acceptance is complete:
1 .As against the Proposer, when it is put in the course of transmission to him, so as to be out of
power of the Acceptor.
2 . As against the Acceptor when it comes to the knowledge of the Proposer.
Acceptances would be formed when the offeror receives the acceptance, and the transmitting party
bears the risk of broken communications.
According to IT Act
Section 11
The record be sent by the originator himself, sent by an authorized person on behalf of the
originator, or sent by an information system programmed by or on behalf of the originator to
operate automatically
Section 12 talks about Acknowledgement
Clause 1 : the originator has not agreed with the addressee that the acknowledgment be given in a
particular form or by a particular method. Here, the acknowledgment may be by any means
sufficient to indicate to the originator that the electronic record has been received.
Clause 2 : if the originator has specied to the addressee that the electronic record shall be binding
only on receipt of an acknowledgment, unless acknowledgment has been received, the electronic
record shall be deemed to have been never sent by the originator
Clause 3 : optional procedure to be adopted by the originator in case of non- receipt of
acknowledgmentthe originator may give notice to the addressee and specify a reasonable time for
acknowledgment
Section 13 talks about time and place of dispatch
The dispatch of an electronic record occurs when it enters a computer resource outside the control
of the Originator the location of the computer resource is irrelevant.
Electronic record is deemed to be dispatched from the place where the originator has his place of
business, and is deemed to be received at the place where the addressee has his place of business.

Software Contracts
Series of commands given to a computer that enables to perform in particular manner to achieve
desired results the rapidly changing needs and preferences of both the inventors/owners of the
software and the end-users as reected in the contract necessitates a good understanding of the
features of the software contracts
Contractual relationship that may exists between the end-user and the owner of the
software has been quite contentious, look at the terms of the contract in the light of the general
principles of contract law applicable to them
Copyright protection and non transferability
This raises a question whether it is a sale or mere license
To answer this, separate the purchase into two separate contracts
i) Sale of software (retailer and purchaser)
ii) License to use the software(S/W owner and the end user)
Contract of Sale:
First to determine whether software is tangible or intangible and according to Indian law it is
tangible but not transferrable(copy right protection).Purchase of the software as a sheer purchase of
the right to use it for oneself within the permitted domain.
Contract of License:
With software contracts clearly not being contracts of sale, the obvious answer is for them
to be taken as licenses to the end-user for the legitimate use of the software
Indian law does not make any express statutory mention of software contracts to make a blanket
classication of the contract as a sale or a license, and the issue is left entirely to contract law .
The shrink-wrap and click-wrap contracts are contracts of adhesion, where the end-user of the
software or service does not have any negotiating power with the software developer and is bound
to take it as given.
The laws on traditional contracts relating to simple concepts, such as the formation, performance,
and payment, are not applicable to contracts formed over the Internet, signicantly affecting the
question of choice of law.

Under traditional contracts, the governing law would be the law of the state where the transaction
occurred, unless agreed otherwise by the parties to the contract, for which the rules of private
international law were used in case of transnational contracts. However, moving over to E-
Contracts, where the parties belong to different countries, and where there is no specic factor to
determine the place of consummation of the contract, there is no mention of what the proper law is,
in the rules of most of the domestic legislations. This pushes the courts to apply the law of the
country that has the closest connection to the country, with the courts again differing in the factors
that they take to arrive at this decision.
E-Contracting greatly reduces geographical barriers and increases the probability of
consumers entering into transnational contracts. This raises several issues of private international
law, and the legal regime here is quite obscure. There is no clarity or uniformity since countries tend
to apply their own domestic laws on jurisdiction, recognition and enforcement, and determination
of the applicable law. The need of the hour is an International Convention that would provide a
holistic basis for the development of substantive and procedural aspects of E-Contracts.