Constructive Notice Makes Sense – Here’s Why
This post is about a legal concept, constructive notice.
Its origin is a Quora answer that I provided. Please see If nobody reads the Terms of Service then how can they legally be acceptable as a disclaimer? (more…)
Browsewrap Agreements Must Be Brought to Users’ Attention
In Online Terms can be Binding, even if You don’t have to Click!, I compared the enforceability of clickwrap and browsewrap agreements. This post discusses Nguyen v. Barnes & Noble, in which the U.S. Court of Appeals for the Ninth Circuit recently examined notice requirements for browsewrap agreements to be enforced.
Plaintiff Nguyen filed a class action lawsuit against Barnes & Noble because it had cancelled his online order for a Hewlett-Packard Touchpad tablet computer. (more…)
Here’s an Arbitration Provision I Like!
I’m not a big fan of mandatory arbitration clauses in contracts: Although arbitration is likely to proceed more quickly than litigation (other than small-claims cases), it is not necessarily less expensive. However, I recently saw an arbitration clause that I like quite a bit.
Linden Research, Inc., developer of the Second Life multi-user online service, includes the following in its Terms of Service (emphasis added):
The provisions that bear most closely on protecting website owners include those pertaining to:
- Disclaimer of warranties made by the owner
- Limitations on the extent of the owner’s liability
- Users’ warranties, especially as concerns any information that they may post
- Users’ acceptable behavior policies, which set the stage for . . .
- The owner’s right, in its sole discretion, to terminate use privileges
- Users’ obligation to indemnify the website owner against liabilities that result from user activities
- A requirement that any lawsuit related to the website be brought at a venue that is convenient for the owner
- An arbitration provision as a way to avoid litigation (though I am not a big fan of arbitration because it can be expensive and precludes small-claims court, which can be relatively quick and inexpensive)
Unfortunately, there are no definitive rules regarding the level of detail that the notice must contain. I have two guidelines that I like to follow.