Just Click No. I’ve written a decent amount about the adhesive nature of website terms of service and how it’s unseemly for contract law to pretend that people read and agree to them. Well, not everyone has to grin and bear it. If you have as much clout as the government, you might be able to wring out a few concessions as Bill Carleton reports in Amending Terms of Service: Pages from the Government’s Playbook.
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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…]
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.
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…]
I’ve been asked on occasion whether a company can post its standard terms and conditions online and incorporate them into their contracts by inserting a reference in each contract to the online terms. The answer in many cases is yes, but there are some issues to navigate. This excellent article, which appeared in the April 2010 newsletter of the Business Law Section of the North Carolina Bar Association contains an overview of the issues involved, as well as some helpful recommendations.
In this recent post I discussed some habits that businesses can adopt to increase their contract hygiene. These practices, which can improve a business’s health, are inexpensive and effective, yet often neglected.
To recap, the first three habits are:
- Negotiate before you sign.
- Give important contracts special attention.
- Don’t sign the other side’s boilerplate terms and conditions. [click to continue…]
“As few as 50% of restaurant workers wash their hands.” I was introduced to that disturbing stat during a presentation about some sort of high-tech handwashing tracking device that could monitor which employees were washing their hands. I’m not sure whether it was mounted to the sink or the soap dispenser or exactly how it worked—I was a bit distracted by the thought that the folks who worked at my favorite restaurants might be on the wrong half of the curve.
This had an oddly familiar ring to it. A simple practice, inexpensive, effective. Yet often neglected. Just like the contracting practices of a lot of businesses. [click to continue…]