Click-wrap agreements, where the user has to click “I Accept” prior to downloading software, accessing information, or performing any number of tasks online, are typically approached with casualness in consumer-to-business transactions. But with B2B click-wrap agreements increasing, Morrison & Foerster partner John Delaney cautions against such a nonchalant approach. “These are take-it-or-leave-it agreements,” he warns. “Companies have to read them as thoroughly as if they were pen-and-ink contracts.”
Amazon Web Services, which enables companies to run virtually everything from the cloud, is a noteworthy example. It has a customer agreement under which its customers agree not to sue for patent infringement in connection with AWS-related services. This includes the affiliates, customers, vendors, business partners, or licensors of its customers and prevents “authorizing, assisting, or encouraging any third party to pursue intellectual property-related claims against AWS,” notes Delaney.
The value of AWS’s services in terms of storage costs is clear. But “companies that have patents or other IP rights covering Internet or cloud-related technologies or works need to be particularly vigilant that they are not restricting their ability to fully exploit their intellectual property rights,” Delaney advises. “The legal risks might outweigh the business benefits.”