Common use of The Proposed Consent Order Clause in Contracts

The Proposed Consent Order. The proposed consent order contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future and to halt continuing harm caused by Respondents’ prior unlawful practices. Part I of the proposed order prohibits Respondents from contacting any consumer’s computer, to display ads or otherwise, if their adware was installed on that computer before January 1, 2006. Parts II and III prohibit Respondents from, or assisting others in, installing software onto any computer by exploiting security vulnerabilities or failing to give adequate notice to consumers, or installing any software program or application without express consent. ‘‘Express consent’’ is defined in the proposed order to require clear and prominent disclosure of material terms prior to and separate from any end user license agreement, and consumer to obtain express consent before installing Respondents’ software onto consumers’ computers. Part V also contains sub-parts mandating certain measures Respondents must take to monitor their distribution network. Part VI requires Respondents to identify advertisements served via Respondents’ adware in order for consumers to easily locate the source of the advertisement, easily access Respondents’ complaint mechanism, and access directions on how to uninstall such adware. Part VII requires Respondents to provide reasonable and effective means for consumers to uninstall Respondents’ adware. Part IX requires Respondents to pay $3 million to the Commission over the course of a year. In the discretion of the Commission, these funds may be used to provide such relief as it determines to be reasonably related to Respondents’ practices alleged in the complaint, and to pay any attendant administrative costs. Such relief may include the rescission of contracts, payment of damages, and/or public notification respecting such unfair or deceptive practices. If the Commission determines, in its sole discretion, that such relief is wholly or partially impractical, any funds not used shall be paid to the U.S. Treasury. Part X requires Respondents to cooperate with the Commission in this action or any subsequent investigations related to or associated with the transactions or the occurrences that are the subject of the Complaint. The remaining order provisions govern record retention (Part VIII), order distribution (Part XI), ongoing reporting requirements (Parts XII and XIII), and filing a compliance report (Part XIV). Part XV provides that the order will terminate after twenty (20) years under certain circumstances. The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify in any way their terms.

The Proposed Consent Order. The proposed consent order contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future and to halt continuing harm caused by Respondents’ prior unlawful practices. Part I of the proposed order prohibits Respondents from contacting any consumer’s computer, to display ads or otherwise, if their adware was installed on that computer before January 1, 2006. Parts II and III prohibit Respondents from, or assisting others in, installing software onto any computer by exploiting security vulnerabilities or failing to give adequate notice to consumers, or installing any software program or application without express consent. ‘‘Express consent’’ is defined in the proposed order to require clear and prominent disclosure of material terms prior to and separate from any end user license agreement, and consumer activation of the download or installation via clicking a button or a substantially similar action. Part IV requires Respondents to establish, implement, and maintain a clearly disclosed, user-friendly mechanism through which consumers can report and Respondents can timely address complaints regarding Respondents’ practices. Part V requires Respondents to establish, implement, and maintain a comprehensive program that is reasonably designed to require affiliates to obtain express consent before installing Respondents’ software onto consumers’ computers. Part V also contains sub-parts mandating certain measures Respondents must take to monitor their distribution network. Part VI requires Respondents to identify advertisements served via Respondents’ adware in order for consumers to easily locate the source of the advertisement, easily access Respondents’ complaint mechanism, and access directions on how to uninstall such adware. Part VII requires Respondents to provide reasonable and effective means for consumers to uninstall Respondents’ adware. Part IX requires Respondents to pay $3 million to the Commission over the course of a year. In the discretion of the Commission, these funds may be used to provide such relief as it determines to be reasonably related to Respondents’ practices alleged in the complaint, and to pay any attendant administrative costs. Such relief may include the rescission of contracts, payment of damages, and/or public notification respecting such unfair or deceptive practices. If the Commission determines, in its sole discretion, that such relief is wholly or partially impractical, any funds not used shall be paid to the U.S. Treasury. Part X requires Respondents to cooperate with the Commission in this action or any subsequent investigations related to or associated with the transactions or the occurrences that are the subject of the Complaint. The remaining order provisions govern record retention (Part VIII), order distribution (Part XI), ongoing reporting requirements (Parts XII and XIII), and filing a compliance report (Part XIV). Part XV provides that the order will terminate after twenty (20) years under certain circumstances. The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify in any way their terms. By direction of the Commission. Xxxxxx X. Xxxxx, Secretary. [FR Doc. E6–18912 Filed 11–8–06; 8:45 am] BILLING CODE 6750–01–P FEDERAL TRADE COMMISSION No FEAR Act Notice AGENCY: Federal Trade Commission (FTC). ACTION: Notice.