MasurLaw Legal Update - Terms and Conditions

MasurLaw wanted to inform you about a recent case decided in New York which may affect your business.

If you have previously used MasurLaw for the drafting of your Terms & Conditions, you should be aware that a case decided this month may change the direction of how New York courts view these documents.

In a case brought against Overstock.com, a New York federal court held that site terms cannot create an agreement with the user unless the user has actual or constructive notice of the terms prior to browsing the site.  In that case, Overstock could not enforce a clause in the Terms and Conditions requiring that all disputes resulting from access to the site be arbitrated when the website did not prompt a user to review the Terms and Conditions and the link to the Terms and Conditions was not prominently displayed.

Many websites typically simply present their terms and conditions of use at the bottom of the website and stipulate that acceptance is based on "use" of the site without prompting users to agree or verifying that the Terms & Conditions have been viewed.  If this is how the Terms & Conditions are presented on your website, you should consider revising it in light of this case.  Any one of our attorneys can help you determine what might be necessary to provide users of your site with constructive notice of your site terms.

If you have any questions about the implications of this case, please don't hesitate to get in touch with MasurLaw.