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 April Newsletter: Pulling Apart the Purchase Agreement for the ICON A5: "The Jet Ski with Wings"

The ICON A5 is an amphibious "light-sport aircraft" that is marketed primarily to adventurous amateur pilots with deep pockets (and spacious home garages in which to store their ICONs). The plane has a recreational focus; it can seat only two, has limited load capacity, and isn't intended to go very far. The cost of the plane was $139K when first introduced in 2006 but is now $389K for a "fully-loaded version."

YouTube is full of videos showing how much fun you can have with an ICON A5 (especially with water landings and take-offs), bringing to mind the "jet ski with wings" analogy. So the ICON A5 is perhaps the ultimate high-tech, outdoor adult toy (unless you're afraid of heights). There have been several fatalities with the A5, but these apparently resulted from pilot error in one case and reckless flying in another rather than from mechanical defects or design flaws. 

The ICON A5 Purchase Agreement (including the Operating Agreement as Exhibit B…

The BUSKLAW September Newsletter: Lawyers and Their Goofy Words - and What to Do About It

Growing up, I was told that lawyers were smart cookies. After all, getting a law degree isn't an easy task. You first go to college and find a subject that is best suited to how your brain works so that you can maintain a high GPA. In my case, I quickly discovered that I wasn't a good fit for the "hard sciences." So I took a lot of Political Science and English courses, learned how to write fairly well, suffered through the tedious law school aptitude test on October 20, 1973, graduated with a B.A. degree in 1974 and then went on to law school. There, I endured a legal education infused with the Socratic method (here's an example), suffered occasional migraines (because some of my law professors were truly smart but couldn't teach) and graduated with my law degree on Mother's Day, 1977. Passed the Michigan bar exam and by God, became an honest-to-goodness lawyer in November of 1977!

So having gone through undergraduate studies, law school, and the bar exam…

A BUSKLAW Newsletter Aside: We Speak Information Technology Law

When I describe my legal specialty as information technology ("IT"), the common response (along with a puzzled look) is, "what does that mean?"

Short answer: "It means a lot." 

Because there isn't a business in existence that isn't affected by something IT related. Does your firm have a website that collects personal information? Then you should have terms of use (and a cookie policy) that comply with state and federal laws, regulations, and the GDPR. Do you sell things on your website and accept credit cards as payment? Then you must institute payment card industry data security standards to protect that credit card data from hackers. And you also must have credit card agreements with your card companies and processing bank that contain indemnity and other "bet your business" obligations. In my experience, credit card agreements are notoriously one-sided and chock full of legal jargon. Have you read yours?  

Apart from those considerations…