Enforceability and Pitfalls of Online e-Commerce Terms of Use

(363 Ratings)

Produced on: October 28, 2016

Course Format On Demand Audio

Taught by


Course Description

Time 62 minutes
Difficulty Intermediate

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


Barry Werbin

Herrick Feinstein LLP

Barry Werbin is counsel at Herrick, Feinstein LLP and a member of its Intellectual Property Group. Barry concentrates his practice in intellectual property and online issues (including trademarks, trade dress, copyrights, unfair competition, false advertising, publicity and privacy rights, trade secrets, domain name issues and UDRP arbitrations, digital rights protection, trademark and content licensing, Internet and traditional marketing and sponsorship agreements, publishing, due diligence and exploitation rights) and technology (including software licensing and development, IT support agreements, web-site development and hosting, and data and computer security breaches). Barry handles infringement and other complex commercial litigation and a broad variety of IP-related transactional matters.

Barry was Chair of the Copyright & Literary Property Committee of the New York City Bar Association 2010-2013. From 2010 - 2013 he was a member of the INTA's Online Use/Web 2.0 Working Group, which studied brands in social media. Barry serves as Co-Chair of the NY State Bar EASL Section's Publicity, Privacy and Media Committee, and is a member of the EASL Executive Committee. Barry also lectures on copyright law at St. John's Law School and Brooklyn Law School, and has lectured on Internet law at Parsons School of Design.

From 2013 through 2016, Barry was recognized as a top intellectual property litigation lawyer by Thompson Reuters' Super Lawyers, which rates outstanding lawyers who have attained a high-degree of peer recognition and professional achievement.


Heather C.

Excellent content.

Cornelius C.

Good update on this issue

Martha C.

Excellent presentation.

stephen h.

Outstanding and informative presentation

Stewart K.

Thank you!

Christopher W.

Excellent program.

Josh N.

Excellent very informative

Shaun S.


Shalom L.

Detailed, thorough, clear, incisive, comprehensive.

Anne H.

Great course!!!

Julie A. B.

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.

Best one I have watched so far!

Jay F.

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.

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

Therese G.

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

Linda E.

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

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


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