Enforceability and Pitfalls of Online e-Commerce Terms of Use

Production Date: October 28, 2016 Practice Areas: Intellectual Property Law and Business, Corporate, & Securities Law Estimated Length: 3754 minutes


$ 59 Intellectual Property Law and Business, Corporate, & Securities Law In Stock

Despite website Terms of Use being ubiquitous, merely posting them on a site does not make them enforceable. Like any contract, there must be a “meeting of the minds” — i.e., an offer and clear acceptance— between the online platform and the consumer or other purchaser of goods or services through the site. But even where end users click on an “accept” button or link, particular provisions of terms of use may still be vulnerable to challenge as being unconscionable, both substantively or procedurally. Despite prior past decisions in multiple jurisdictions upholding properly worded and structured terms of use, we are now seeing increasing attacks on terms that severely limit users’ rights and shield providers’ liability.

Southern District of New York Judge Jed Rakoff’s recent decision invalidating an arbitration clause in Uber’s terms of use, is an example of what can happen when consumers’ key rights are being waived in terms of use that are buried multiple clicks away from a consumer’s starting point.  Recently, a spat of class actions have been filed in New Jersey under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), a law passed back in 1981 long before the Internet, challenging retail web site terms of use containing broad limitations of liability and other waivers of rights. 

This course, presented by Barry Werbin, senior intellectual property and litigation counsel at Herrick, Feinstein LLP, reviews the legal issues surrounding online contract formation and terms of use, reviews key cases addressing the enforceability of terms of use, examines particular clauses that are most vulnerable to challenge, and offers practical guidance to consider when drafting and enforcing online terms of use. There will be a particular focus on New York and California and the 2nd and 9th Circuits. 

Learning Objectives: 
  1. Identify types of online contracts, including browse-wrap and click-wrap agreements
  2. Formation of valid terms of use agreements and amendments
  3. Collecting and preserving admissible evidence of end user acceptance of terms of use
  4. Overview of particular clauses, including forum selection and choice of law, limitations of liability and arbitration waivers
  5. Provide practical guidance to reduce legal risks in structuring and enforcing online terms of use

stephen h.
forest hills, NY

Outstanding and informative presentation

Stewart K.
San Rafael, CA

Thank you!

Christopher W.
San Francisco, CA

Excellent program.

Josh N.
Boca Raton, FL

Excellent very informative

Shaun S.
San Diego, CA


Shalom L.
Manhattan, NY

Detailed, thorough, clear, incisive, comprehensive.

Anne H.
Darien, CT

Great course!!!

Julie A. B.
Hiles, WI

A concise, comprehensive, worthwhile, well-presented program. A home run! Grateful for the supplemental article (Barry Werbin, Ensuring Enforceability of Online E-Commerce Agreements, Vol. 34, No. 1 NYSBA Inside 45- 52 (Spr.-Sum. 2016)) and its extensive endnotes.

Jeremy W.
Manhattan, NY

Best one I have watched so far!

Jay F.
Corvallis, OR

Outstanding course, starting with the explanation of the WXYZ various wrap agreements. Even better was the seamless blend of old contract common law, ecommerce and internet, and new contract common law.

Victoria S.
Staten Island, NY

Great speaker! The materials were concise, comprehensive and very well presented.

Therese G.
Ventura, CA

Enjoyed the approach of walking through the history of case law.

Linda E.
Roswell, GA

Excellent, excellent. Knows his stuff, talks about it easily, uses cases very well. Easy to listen to.