Skip to main content

The BUSKLAW April Newsletter: Uncommon (Contract) Clauses and Where to Find Them (first post in a sometimes series)

(With a wizardly hat tip to J.K. Rowling's Fantastic Beasts
So you're the guy with the case library full of monsters uncommon contract clauses, huh?)

In the realm of reading and writing contracts, it's best not to ignore the "fine print." This is especially true when it comes to online terms and conditions that can be found at just about every commercial website. You visit the website and agree to its terms and conditions (usually by clicking on an "I agree" button). But only the courageous will marshal their mental prowess and confront the dense legal jargon and other blatant drafting errors that are rife in this internet stuff. 

The price of ignoring online terms and conditions can be high. The defense that you didn't actually read the terms and conditions is weak. You can be bound to a waiver of a jury trial, agree to arbitrate any dispute in a far away jurisdiction, or consent to an unrealistic damages limitation. 

Or you can agree to sell your soul under an "immortal soul clause."

That is what the online U.K. gaming store GameStation did on April Fool's Day 2010 with this provision:

In placing an order via this Web site (sic) on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non-transferable option to claim, for now and for ever (sic) more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification (sic) from gamestation.co.uk or one of its duly authorized minions. 

As the Huffington Post reported, only 12% of GameStation purchasers noticed the clause on April 1, 2010, and clicked on the handy "click here to nullify your soul transfer" button; the remaining 88% (7500) sold their souls to GameStation. But no worries - GameStation subsequently nullified all claims to their customers' souls. (In so doing, they arguably relinquished a valuable asset that could have been sold to the highest diabolical bidder. Can you say "shareholder lawsuit"?)

Gamestation's immortal soul contract clause is only the tip of the uncommon contract clause iceberg. There are lots of them in the wild, and some are not so funny. Stay tuned for more uncommon clauses - and where to find them. 

Finally, if you have a website, you should make sure that you not only have a coherent set of terms and conditions but also that they comply with the laws of the States that you do business in. If you sell goods from your website, consider: 
  • Warranty provisions, limits, and exceptions;
  • Provisions that limit your liability to your customers and how disputes are handled; 
  • A privacy policy addressing how you safeguard customer data, including customer credit card information if you keep it; 
  • Business FAQs, including how your goods are shipped to your customers; procedures for return of and credit for defective goods; and how you notify customers of delayed shipping dates and out-of-stock items. 
A legal audit of your website terms and conditions - preferably by someone other than the attorney who prepared them - would be money well spent! I regard this work as a "loss leader," so my usual modest hourly fee to review website terms and conditions is (wait for it...) even more modest.  
____________________________________

If you find this post worthwhile, please consider sharing it with your colleagues. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. And my email address is busklaw@charter.net. Thanks!

Comments

Popular posts from this blog

The BUSKLAW May Newsletter: Is There a Moral Imperative to Plain English? Part 1 - Examples

"The man in black fled across the desert, and the gunslinger followed." 

Thus begins Stephen King's epic story of the gunslinger, Roland Deschain, and the popular Dark Tower series of novels describing his adventures. But King didn't have to write this sentence that way; he could have consulted with the typical lawyer, politician, or company PR department first. Had he done so, the sentence may have appeared so:

"The bad hombre who was dressed mostly in dark clothing and running fast across an arid land was pursued by a multi-armed, extremely dangerous, and notorious vigilante."
The difference in these two sentences is clear. King's concise short sentence creates an image that grabs the reader's attention and raises provocative questions. Who is the man in black? Who is the gunslinger? Why is he after the man in black? But the Bizarro World Stephen King sentence - with its ethnic slur, passive voice, ambiguity, suppositions, and superfluous adjectives …

A BUSKLAW Newsletter Aside: Links to My Michigan Bar Journal Plain-Language Articles

Since my retirement from in-house corporate law in 2014, I've written or co-written several articles about using plain-language in contracts for the Michigan Bar Journal. And a new article has recently appeared in the October 2017 issue. But those articles haven't been a lone endeavor in any sense; I've had several plain-language experts give me their input along the way:
Plain English Scholar and WMU-Cooley Law School Distinguished Professor Emeritus Joe Kimblewho invited me to write for the Journal to begin with and has since freely given me editorial advice that not only benefits the particular article du jour but also helps my legal writing generally. And a hat tip to Journal Editor Linda Novak who has put, editorially-speaking, the "frosting on the cake" before publication of these articles. Michael Braem, J.D., Contract Manager of the Michigan State University College of Human Medicine, who has co-authored some of the articles with me. Michael has also becom…

The BUSKLAW December Newsletter: Consider a Legal Audit of Your Contracts

Most of you are business professionals and thus are involved with contracts. Depending on the nature of your enterprise, you have various contracts in force, for example: 

>sales agreements
>purchase agreements >real estate leases >purchase order terms and conditions >software license and maintenance agreements >service agreements >equipment maintenance agreements >consulting agreements >contractor agreements >employment agreements >non-disclosure agreements >non-compete agreements >transportation or logistics agreements >financial institution agreements

Perhaps you work with these documents on a regular basis and are familiar with their content. Or you pay a high-priced law firm to do that for you. More commonly, however, you keep these documents in a file cabinet, rarely review them, and only call your expensive big-firm lawyer when there are problems with the transaction. Whatever the case, consider the advisability of a legal audit to focus on the follow…