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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.  
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