It has come to our attention that many departments and divisions of the University are freely “clicking” on software click-wrap, click-through, and/or automatic update agreements (collectively “click-wrap agreements”). These types of agreements require a user to click “I agree” or “I accept” before the software or hardware can be installed. Under recent court decisions it has become clear that click-wrap agreements are legal and binding contracts and therefore are subject to the University contracting policy. Under University contracting policy, these agreements may only be entered into by someone who has authority to enter into a contract binding the University. The major problem we see with these agreements is that they commonly contain provisions that are prohibited by North Carolina law or policy. For example, most click-wraps provide for mandatory arbitration and indemnification, and subject us to the law of states other than North Carolina or, in some cases, the laws of other nations.
General Counsel has done the following to assist the campus in addressing these problematic agreements:
- We have been attempting to negotiate a statement in all written contracts associated with software or hardware purchases or acquisitions that specifically says the written contract overrides any subsequent click-wrap agreements.
- We maintain a list of all software or hardware products that have approved click-wraps.
If you encounter a click-wrap agreement, please do not click on it until the appropriate approval process has been completed. Anyone encountering a click-wrap should consult the List of Approved Click-Wraps. If not, the text of the agreement should be forwarded to General Counsel for review as you would any other contract. Please remember that anyone who enters into a non-approved click-wrap agreement that purports to bind the University without following the Procedure for Entering into Non-Approved Click- Wrap Agreements is acting without authority and may be held personally liable for the contract and all costs incurred thereunder.
If you have any questions regarding this matter, please feel free to contact the Office of the General Counsel at 334-3067 or firstname.lastname@example.org