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Key components of Web Site Terms of Use and Issues of Mutual Assent and Enforceability

Key components of Web Site Terms of Use and Issues of Mutual Assent and Enforceability. Lucille M. Ponte Associate Professor of Law Florida Coastal School of Law lponte@fcsl.edu

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Key components of Web Site Terms of Use and Issues of Mutual Assent and Enforceability

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  1. Key components of Web Site Terms of Use and Issues of Mutual Assent and Enforceability Lucille M. Ponte Associate Professor of Law Florida Coastal School of Law lponte@fcsl.edu Prof. Ponte wishes to acknowledge and thank Miles Weeks Mader, Research Assistant and Candidate for JD in 2010, Florida Coastal School of Law, for his research efforts on this project.

  2. Key Components of Web Site Terms of Use USER-RELATED TERMS OWNER-RELATED TERMS • Eligibility to Use Site • Age/Geography • Use Restrictions • Codes of Conduct • Monitoring/Account Termination • Boilerplate Provisions • Indemnification • Limits on Liability • Third Party Links • Choice of Forum/Law • Scope of Agreement • Future Amendments • Site Ownership • Limited License to Use • Reserving IP Rights • Deep Linking, Bots • Privacy Policy • Data Collection, Use, Retention • Warranties and/or Disclaimer of Warranties

  3. COMMON LEGAL CHALLENGES TO TERMS OF USE • CLICKWRAP VS. BROWSEWRAP • Issues of Assent - Actual or Constructive Notice • Consumers vs. Commercial Entities/Competitors • LACK OF MUTUAL ASSENT - Specht • Placement of Text Box/Link • Language on Web Page regarding Terms of Use • Opportunity to Review Terms before Assent - Scrolling • Requiring Affirmative Assent (“I Agree”/”I Don’t Agree”) • Opportunity to Discontinue Use or Seek Refund Upon Review of or Notice of Change in Terms of Use MIXED OUTCOMES IN ONLINE CASES DEPENDING UPON STATE LAW/PRECEDENT

  4. EXAMPLE OF DIALOG BOX Google Images, image available at www.quark.com/.../qla/installing_qla_mac.html

  5. COMMON LEGAL CHALLENGES TO TERMS OF USE • PUBLIC POLICY • Contrary to Constitution, Statute, Judicial Precedent? • Consumer Protection Laws. • State Views on Class Action Proceedings. • UNCONSCIONABILITY • Equitable Principles/Good Faith & Fair Dealing • Procedural – Integrity of K Formation/ Negotiation • Substantive – Fairness of K Terms • Unfair surprise? Oppressively harsh/one-sided? • MIXED OUTCOMES IN ONLINE CASES DEPENDING UPON STATE LAW/PRECEDENT

  6. BRAGG v. LINDEN(ICC Arb. Clause – CA Law) • Pro. Unconscionable • K of Adhesion/Not Negotiable. • No Reasonable market alternatives. • Arb. clause buried in fine print. • Sub. Unconscionable • Harsh, one-sided terms. • Excessive costs of arbitration/fee-sharing. • Venue intended to shield Linden from liability. • Confidentiality clause results in uneven playing field. • No showing of legitimate business need.

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