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Failure to enforce terms in court can cost a lot of time and money. The demand for businesses to enforce their terms (e.g., arbitration clauses, forum selection clauses, class action waivers) in court is on the incline in 2021.
But courts don't always make it easy to know what will make an enforceable online agreement. The best practices in online agreement presentation are constantly changing. And as a result, businesses need to stay up to date with new developments in case law and adjust their practices accordingly.
We know (from experience) that keeping up with case law can be a time consuming process for legal teams. So, we want to help. The PactSafe Legal team keeps track of and summarizes the most important recent cases into a monthly newsletter. Read the recent cases from TripAdvisor, Tawkify, and Amazon.com below.
TripAdvisor was recently unable to enforce their terms in court. Viator, a TripAdvisor subsidiary, notified users that "by clicking Book Now and making a reservation, I acknowledge that I have read and agree to be bound by Viator's Terms and Conditions and Privacy Statement." Viator presented a screenshot illustrating as such, but the court refused to consider the screenshot because it was undated. As a result, the court could not be certain that the screenshot produced by Viator was an accurate depiction of what the users at issue in the case had seen when they booked a reservation. The court, therefore, declined to enforce Viator's terms.
Tawkify was recently unable to enforce their terms in court. Tawkify required users to click a box indicating that they have read Tawkify's terms. The court found Tawkify's terms to be unconscionable because, although Tawkify used a clickwrap agreement to gather user assent, the clause at issue was hidden on the last page of the terms and not otherwise called out. The court found this to be a "needle in a haystack" scenario, and declined to enforce Tawkify's terms as a result.
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