Click and Accept
Is the “Click and Accept” sufficient enough to create a binding contract, are there any capacity/intention issues?
Yes, a “click to accept” offer is considered legally binding if the user has a clear opportunity to read and understand the terms and conditions before making a decision. Under canadian contract law, offer and acceptance can happen digitally if there is mutual intent and consideration.
In this case, RMS took a look at CloudClearity’s posted terms and clicked “I agree” and received a confirmation email. This is clear offer and acceptance.
Does the standard form contract need to be under seal given there is no room for negotiation?
No, a seal is not required when consideration exists. RMS gave payment and CloudClearity provided software, this mutual value exchange creates a fair and binding contract that both parties agreed to.
Is the 10-day cure window reasonable/enforceable?
The reasonableness of a cure period depends on the contract and industry practice. A 10 day cure period might be seen as unreasonable for a complex and tedious system that may require a heavy amount of time, especially where a unseen cause like wildfire damage is outside party’s control. Can also act on “good faith” and they must be honest and allow downtime to find solutions for problems.
Under the contract construction element of Consideration, to what degree is RMS able to negotiate the contract?
The agreement was a non negotiable “take it or leave it” offer, this almost leaves RMS’s with zero room for negotiation. Although, These types of agreements are somewhat enforceable, courts will scrutinize them for lack of true consent.
RMS’s only option was to accept or reject the offer. If any clause was unclear or vague, a court would take it against CloudClearity under the contra proferentem rule
CloudClearity terminated the contract after 75 days of sub 95% uptime (machine/system being available and working), where the outages were due to wildfires. Were they entitled to these actions?
No, the Force majeure clause excludes non-performance caused by circumstances beyond the party's control. Because of the wildfires that disrupted RMS’s network, this activates the clause and postpones obligations until the situation is back to normal. Under Alberta law, a party cannot rely on conditions subsequent to terminate when a force majeure event causes failure.
Termination is the wrong move, CloudClearity should have paused enforcement instead of cancelling the agreement.