A New Jersey appellate court recently refused to enforce an online forum selection clause that was contained in a browsewrap agreement, but it stopped short of holding that browsewraps are unenforceable as a matter of law. The case is interesting because of the comparisons the court draws with the influential and well-known case of the United States Court of Appeals for the Second Circuit Specht v. Netscape Communications Corp. and the New Jersey case Caspi v. Microsoft Network, L.L.C. (It’s also interesting because the case involves the online purchase of a “performance-enhancing” supplement known as “Erection MD,” but I digress.) [click to continue…]
I’ve written fairly often in these web pages about whether online terms and conditions are enforceable—partly because it’s a developing area of contract law, partly because I’m fascinated by the legal fiction that there’s a “meeting of the minds” between website owner and user, and partly because I’m waiting to see what happens when a website owner crosses the line as illustrated by this South Park clip. The ABA’s Business Law Today magazine recently published an excellent article about whether online terms are enforceable, which focuses on the incorporation by reference doctrine. The article was written by Raymond P. Kolak and Ryan D. Strohmeier and it’s well worth a read.
Kudos to Active.com for putting together an excellent browsewrap checkout screen. I had to navigate through the screen recently in order to sign up for the St. Louis Rock ‘n’ Roll half marathon.
When courts determine whether to enforce online terms and conditions, they tend to focus on whether users had notice of the online terms and whether they assented to them. To my mind, the perfect notice and assent procedure would require the terms to be loaded onto the user’s computer screen for long enough to ensure that the user had sufficient time to read them. [click to continue…]
I’ve been reading and thinking a lot lately about website terms of service. There’s something unsavory to me about having a contract formed between a website owner and its users by posting complicated legalese on the site and pretending the users read them.
It’s the “pretending the users read them” part that bothers me. Everybody knows consumers don’t read these complicated–and oft-changing–legal documents, yet they form the contract between website and consumer. As Coco Soodek, BigLaw partner and author of the book Birth to Buyout, wrote in a recent post on her Profit and Laws blog, “businesses that pose these contracts have to pretend that they don’t know that you know that they know that you aren’t going to read the contract.” [click to continue…]
I’ve long been bothered by the fact that online terms of use are seldom read and rarely understood. Finally, a solution has presented itself in the form of a dramatic reading by Richard Dreyfuss presented by CNET. The termination provision is especially lively.
Cheers to Mike Wokash, aka @MadisonIP, for the link.
South Park has never sustained my interest, but this clip, which I discovered on mashable.com, is downright funny. In the clip the green-capped character (Kyle, according to chacha.com) finds that he agreed to much more than he bargained for when he clicked on the iTunes terms.
Are contracts made via email enforceable? You betcha—although not in all cases.
In this recent post I highlighted a case where a written contract was modified by a pithy instant message exchange, and in this post I discussed a case where a court enforced “browsewrap” terms of use for a free website where the user had not read the terms. Today I’ll discuss a cyberspace contracting case where an email exchange formed a binding contract. [click to continue…]
Let’s face it, no one reads online terms and conditions. Admit it, you don’t read them either. I know you don’t, because I don’t. And I read user’s manuals (and file them). I never quit a book until I’m finished, no matter how bad the book is. I read the dust jacket, copyright page, table of contents, preface, introduction, footnotes and endnotes, bibliography, and often well into the index. And God help me if the first volume of a trilogy is a dud.
But I’m not likely to spend half an hour slogging through terms and conditions when I’m downloading software, paying my credit card bill, buying something on Amazon, or signing up for a social media service. But maybe I should…. [click to continue…]
Be careful about informal communications with counterparties to your contracts. That’s the key lesson from a case decided by a federal court in Florida last month. In CX Digital Media, Inc. v. Smoking Everywhere, Inc., the court held that a short, informal instant message exchange between two parties to a contract modified the contract—to the tune of about $1.5 million. And the contract contained a provision that required changes to be made in writing.
The Written Contract
Smoking Solutions and CX Digital had entered into a written contract. [click to continue…]
