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Best Practices If you're using browsewrap agreements today, consider switching to clickwrap agreements to make your terms and policies more enforceable. Clickwraps will help strengthen your case if legal claims are made against your company. Give your users an opportunity to fully review the agreement terms they are agreeing to.

You can link directly to the agreements or provide a scroll box, then allow the user to view the agreement before they can accept. Ensure you have tight internal processes and, where possible, automated workflows that help operationalize these best practices. This allows you to consistently execute and scale without requiring additional support.

Clickwraps Are Inconspicuous and Hard to Distinguish on a User Interface Contracts presented during the user's sign-in process is often a gray area. Design often matters. Juul Labs was unable to enforce its agreement in Colgate v. Juul Labs Inc. Gogo made a similar mistake in Berkson v. However, the court found Gogo did not do enough during the sign-up process to draw users' attention to the terms-and-conditions hyperlink containing an arbitration clause.

The hyperlink was not in large font, all caps or bolded, nor was it accessible from multiple locations on the webpage. Some businesses have also made design mistakes that seem appropriate at first. As seen in Friedman et al. Guthy-Renker LLC, the purchasers at Guthy-Renker were required to affirmatively agree to specific terms by clicking a check box. The company later updated its site, and later purchasers had to check a more prominently placed box stating "Agree to Terms and Conditions," which was also linked to the site's terms.

As you would expect, the earlier purchasers who saw only the ambiguous "Agree to Terms" check box were not bound, while the later purchasers who used the updated site checkout procedures had an enforceable contract. Best Practices The design and layout of the agreement matters.

Don't bury the link in a mess of other links. Use superobvious fonts, colors or underlines. Ensure clickwrap agreements are presented in a manner that comply with the requirements of the Americans with Disabilities Act and Section of the Rehabilitation Act so your customers with visual impairments or other disabilities can access these agreements.

Present clickwrap agreements in a responsive experience for multiple form factors, such as for tablets and mobile devices. Ensure your approach to such agreements is consistent across your site s and applications. Users Don't Explicitly Express Consent When Agreeing to Terms Courts do not look kindly to contracts that, absent a signature, do not offer the prospective customer a clearly noticeable opportunity to demonstrate that they actually agree to what's in front of them.

But the bar can be surprisingly high without an obvious "I agree" button. Courts have even rejected contracts when they are presented within a prospective customer's user experience flow. For example, in Savetsky v.

Pre-Paid Legal Services Inc. Amazon, Amazon's terms of service were also deemed unenforceable. The court emphasized that while clickwrap agreements are not required, "they are certainly the easiest method of ensuring that terms are agreed to. The "I accept" language has generally been viewed as safe. If a sign-on option is preferred, make sure there is an explicit notice that by signing up for your product or service, the user accepts the agreement.

Ensure that the language and notices are consistently applied across your site s and applications. Failure to Document Evidence of the Consent and Maintain a Detailed Audit Trail Your business clearly and conspicuously presents the terms to your customers, your customers are required to click "I Agree," but you don't keep detailed records of their consent?

That won't do; in fact, that opens businesses up to legal risk. Maintaining effective records of clickwrap agreements is coming to the forefront in recent litigation. Some companies may think their clickwrap processes are sufficient without documenting evidence, as customers cannot use their services and goods unless they click "I Agree" to proceed.

However, this process is not sufficient without evidence of consent. In fact, clickwrap agreements are moot unless sufficient evidence of each agreement is well-maintained for use in any resulting legal proceeding. The court in Nager v. Tesla Motors Inc. Board of Trustees, U. Noah v. New York v. Buffnet settlement Feb. Ramey v. Darkside Productions, Inc. May 17, precludes liability for ads provided to it, even if the website categorizes ads and makes minor modifications.

Stoner v. LICRA v. Yahoo County Court of Paris, Nov. In Yahoo v. Multimania Co. Lefebure v. Lacambre French Tribunal de Grande Instance de Paris, June 9, holding a web provider liable for right of privacy violation because a user posted nude photos. Tele2 Norge Oslo City Ct. June 5, holding an IAP liable as an accomplice for illegal pornography distributed on newsgroups it carried. Union of Jewish Students v.

Andersen Consulting LLP v. UOP N. Davis v. Gracey, F. Guest v. Leis, WL 6th Cir. July 2, seizure of BBSs containing private emails did not exceed scope of warrant; users forfeit right to expect privacy in their subscriber info when disclosed to system operator. April 10, analyzing whether placing cookies violates the ECPA; refusing to dismiss the claim.

Jessup-Morgan v. America Online, Inc. Konop v. Hawaiian Airlines, US App. Lexis 9th Cir. After ruling was withdrawn, revised opinion was issued in U. Labwerks, Inc. Sladekutter, Ltd. McVeigh v. Cohen, F. Pharmatrak, Inc. Privacy Litigation 1st Cir. Case dismissed on remand for lack of scienter. Mass, Nov. Steve Jackson Games, Inc. Secret Service, F. Thoefel v. Farey-Jones 9th Cir. United States v. Councilman 1st Cir. Hambrick W. Moriarty D.

Bohach v. City of Reno, F. Bourke v. Nissan Motor Corp. Flanagan v. Epson America, Inc. Florida v. Clearwater Fla. Fraser v. Nationwide Mutual Insurance Co. Freeman v. America Online D. Haynes v. Kline D. Kansas Dec. McLaren v. Microsoft Texas Ct. Putnam Pit, Inc. City of Cookeville M. Restuccia v. Burk Technology, Inc.

Middlesex Superior Ct. Shoars v. Smyth v. Pillsbury Co. State ex rel. Wilson-Simmons v. Lake County Sheriff's Dept. Theofel v. Bernstein v. United States, F. Further ruling, F. On appeal 9th Cir. Bunner Cal. Karn v. Junger v. Daley, 9 F. On appeal, reversing the lower court and holding that source code may be protected by the First Amendment, Fed. Universal City Studios v. Reimerdes, F. Elcom N. Federal Trade Commission v. Jerome-Duncan, Inc. December 24, May 21, finding that an exclusive agreement to refer car sales leads gathered from a website to a dealer was not a franchise agreement even though the referrer promulgated standards for performance.

Louisiana R. In re Mastercard International Inc. Internet Gambling Litigation 5th Cir. Missouri v. Interlocutory appeal denied, U. The Eighth Circuit ruling is at F. A rehearing en banc and certiorari by the Supreme Court were both denied. In the Matter of PayPal, Inc.

UniStar Entertainment Cir. State v. Olivier v. Ministry of Safety and Security South Africa refusing the reclamation of computer equipment used for Internet gambling. ApolloMedia Corp. Reno, 19 F. Daniels v. Worldcom Corp. Internet America Inc. Massey Tex. Dallas County Dist. Mourad v. Bojekian 3d Cir. Owens v. An earlier ruling was made at U. People v. Kochanowski NY App. Term Oct. Munn N. February 9, newsgroup article urging others to kill a specific police officer constituted harassment.

Planned Parenthood v. American Coalition of Life Activists, F. Vijay Cal. Baker, F. Alkhabaz, FED App. Kammersell, 7 F. Machado S. February UC Irvine student sends hate mail to other students. Pollstar v. Gigmania E. Ticketmaster, Inc. Also relevant: Fred Wehrenberg Circuit of Theatres v.

Moviefone, 73 F. Legg Mason D. July 10, Morris Communications Corp. PGA Tour M. In a subsequent ruling from Dec. National Basketball Association v. Motorola, F. British Horseracing Board Ltd. William Hill Org. High Court of Justice, Chancery Div. Royal Dutch Telecom v. Xbase Software Hague Court Jan.

Daniel v. James v. Meow Media D. April 6, no liability based on website content for contributing to a shooting death. Remsburg v. Docusearch N. French Union of Jewish Students v. Yahoo France Nov. Also relevant: Rice v. Paladin Enterprises, F. Cases Involving General Jurisdiction. Aarotech Laboratories, Inc. Atlantech Distribution Inc. Credit General Insurance Co. November 10, passive website does not create general jurisdiction.

Bird v. Parsons 6th Cir. LL Bean, Inc. Gifford v. Bruce Strumpf, Inc. Maine August 7, no general jurisdiction conveyed based on advertising website. Gorman v. Ameritrade Holding Corp. Graphic Controls Corp. Utah Medical Products, Inc. May 21, website insufficient to confer general jurisdiction.

March 5, website insufficient to confer general jurisdiction. Haelan Products Inc. Beso Biological, U. July 11, finding a company subject to general jurisdiction based on a nationwide advertising campaign, the availability of a toll free number and its website, but the website alone would have been insufficient; this case is wrongly reasoned and would have been better analyzed as a specific jurisdiction case.

IDS Life Insurance v. SunAmerica, F. Fallon McElligott, U. August 5, Mieczkowski v. Masco Corp. March 18, general jurisdiction found based on combination of defendant doing substantial business in Texas and a website that provides detailed product information, printable online order form, screen where users could check on the status of their order, and the ability to email a sales representative. Robbins v. Yutopian Enterprises, Inc. Energy Investments Inc.

Hobby Lobby Stores, F. Standard Chartered Bank 10th Cir. Telephone Audio Productions, Inc. Lexis N. March 26, website alone does not confer general jurisdiction. Weber v. Jolly Hotels, F. Cases Involving Specific Jurisdiction. Poptop Software N. ALS Scan, Inc. Digital Service Consultants, Inc. CNN v. Lexis SDNY October 30, asserting jurisdiction over a service that was scraping data and retransmitting it by phone. Coastal Video Communications Corp. Expert Pages v.

Buckalew, U. August 8, MGM Studios v. Grokster, Ltd. Mink v. Winfield Collection v. McCauley E. Catacombs Press, 44 F. June 5, Blakey v. Continental Airlines, Inc. California Software Inc. Reliability Research, Inc. Basis International Ltd. English Sports Betting, Inc. Tostigan E. Griffis v. Luban Minn.

Hy Cite Corp. Machulsky v. Hall D. Mallinckrodt Medical, Inc. Sonus Pharmaceuticals, Inc. Price, WL D. Media3 Technologies v. Jan 2. Southam, Inc, U. Jones, a Canadian newspaper publisher was not subject to general or specific jurisdiction in California for an allegedly defamatory article, even though the article was available on the Internet and in Lexis and Westlaw.

Resnick v. Manfredy, 52 F. Revell v. Lidov 5th Cir. Telco Communications Group, Inc. An Apple a Day, Inc. Wagner v. Miskin, N. Young v. Gutnick v. MacQuarie Bank Ltd.

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