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A Class Action Waiting to Happen: Avalure ReNew Eye Cream's Sneaky Terms of Service

By Caitie Parten on Jul 31, 2017 11:00:00 AM

This article was originally published on Medium.

We’ve all seen ads like these or similar all over the web —a limited time free offer for some miracle product — in this case, it's Avalure's ReNew Eye Serum/magical wrinkle remover cream:

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Use Clickwraps for Business Contracts

By Amber Ferrari on Oct 20, 2016 7:45:00 AM

Over the last year, we have been following cases of companies such as Dick’s Sporting Goods, Barnes & Noble, and Proflowers.com for posting their website terms online via hyperlink. Attempting to enforce a website’s terms of use this way is called a browsewrap agreement. The enforceability of passive browsewraps has been a toss up for a while and continues to fade. Clickwrap agreements are so much more verifiable. It’s a mystery why more companies aren’t using them within their websites and apps.

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Worried About Class Actions? Consider Using Arbitration Provisions Online

By Brian Powers on Aug 18, 2015 11:20:00 AM

Class actions are a major pain for big companies.  In fact, a recent survey by Norton Rose Fullbright, polling more than 800 corporate counsel, revealed that class action lawsuits were the most important legal issue impacting their companies.

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We surveyed browsewrap agreements across 1,000 top websites. Here's what we found out.

By Kyle Robbins on Jun 29, 2015 7:09:42 AM

If you've followed our blog at all, you already know that using a browsewrap agreement to bind consumers to terms on your website isn't the best practice for organizations looking to keep legal risk away. But we often receive the question -- well, isn't everyone else doing it? Sure, we knew there were some sites or companies that weren't overly concerned with protecting legal risk and were much more concerned with the "user experience" or the "aesthetic value" of the page. (We'll put those in quotation marks -- because it's plenty easy to preserve both while providing the user more-than-adequate notice.)

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Want to lose a lawsuit because of your browsewrap or clickwrap agreement? Here's how to do it.

By Kyle Robbins on Jun 22, 2015 9:14:25 AM

Your company spends hours, maybe even days or weeks, perfecting the terms of use and other legal terms listed on your website. They're written with peace-of-mind in mind, designed to protect you from the worst-case scenario when you're served with a lawsuit from an angry consumer or partner. And in most cases, those provisions written into your terms designed to protect you would normally hold up when written into a paper contract.

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Tips and Best Practices for Browsewrap Website Legal Agreements

By Brian Powers on May 26, 2015 10:25:12 AM

If your website employs a browsewrap website legal agreement, there are a number of practices you should follow to make sure that agreement is enforceable should you ever need to enforce it. Typically, browsewrap website legal agreements are intended to provide all sorts of legal protections for your website / business (disclaimers, limitations on liability, binding arbitration...lots of stuff...talk to your lawyer!) - but if its not enforceable then it does you no good at all. Below are some of the best practices we have found based on scouring millions (well maybe not millions) of pages of case law on the subject.

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3 Website "Terms of Service" Design No-No's for Developers (Part 1)

By Eric Prugh on Apr 23, 2015 9:48:16 AM

This blog post is the first in a three-part series designed for developers on design of your website terms of service, terms of use, and terms & conditions. See part 2 here.

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What is a website "Terms of Use"?

By Brian Powers on Apr 19, 2015 4:48:21 PM

What is a website“Terms of Use”?

Terms of Use are legal terms to which a website user must agree prior to the use of the service provided by a website. Such agreement is used to define the rights of the user and the website owner, protect the interest of the website owner, limit the parties’ legal obligations and indemnify the website owner. Suffice it to say, a good website terms of use acts as the website owner’s insurance against lawsuits.

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Don't Bury Links to Your Browsewrap if You Want Them to Be Enforceable.

By Brian Powers on Sep 24, 2014 10:39:37 AM

Once again, a court has held ruled that burying the link to a browsewrap agreement (in this case Terms and Conditions) in the footer of a website is an excellent way to render that browsewrap agreement meaningless and unenforceable. The ruling comes from the United States District Court, Eastern District of California. The website in questions is Job.com, a website for job-seekers and employers. Job.com, as part of its case, tries to enforce the browsewrap Terms and Conditions to assert a breach of contract claim.

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Inconspicuous Browsewrap Agreement Still Not Binding, but Clickwrap Agreement Upheld

By Brian Powers on Aug 6, 2014 8:45:16 PM

There has been little guidance since the Zappo’s opinion back in 2012 regarding the validity of browsewrap and clickwrap agreements and the elements necessary for these agreements to be upheld. Just recently, however, the Northern District of California decided a class action case between the plaintiffs (Tompkins) and the defendants being a personal genetics company, 23andMe, who filed a motion to compel arbitration. The court held that the customers must go through arbitration because 23andMe’s clickwrap agreement containing the terms of service (which included an arbitration provision) was accepted when the customers created accounts or registered their DNA kits with 23andMe. Additionally, the court found that 23andMe‘s browsewrap terms of service agreement did not bind website visitors or customers who only purchased a DNA kit without creating an account or registering a kit.

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