I Signed WHAT?!

In the bricks-and-mortar-world, not many businesses would survive if they told customers to 'Keep Out!'

Yet the typical e-commerce 'Terms and Conditions,' the electronic equivalent of the fine-print contract that governs use of a sales Web site, creates such an unfriendly shopping environment that it makes the legendary 'No soup for you!' restaurant of the television situation comedy Seinfeld seem like the Welcome Wagon.

Although I have often written about how the law affecting e-commerce firms ordinarily follows traditional law, the common e-commerce contract stands in stark contrast. Consider the following clauses from actual online agreements obtained in April and May ' and whether you have ever seen anything comparable in any real-world store, much less these Web stores' real-world affiliates. A comparable analysis of Internet service providers' ('ISPs') contracts by Associated Press ('AP') Technology Writer Peter Svensson is available at www.theledger.com/article/20080403/BREAKING/356559410, but here, the problem of oppressive boilerplate seems even more misplaced in the 'customer is always right' culture of retailers. Even worse, such language is deeply buried in boilerplate, often hidden behind a fine-print link read only by those doing due diligence or sorting out the mess after a problem occurs.

While the question of the fairness of non-negotiable boilerplate contracts is beyond the scope of this article, the appearance online of such uncharacteristically unfriendly clauses would certainly shock the typical customer (or consumer advocate).

(Editor's note: For more on this topic, see, 'Unconscionable Clauses Prevent Enforceability of e-Commerce Contracts' in this issue.)

Obnoxious Boilerplate Can Hurt an e-Business

Keep Out!

Target.com tells its customers quite bluntly that they must abide by its terms, or leave:

'IF YOU ARE DISSATISFIED WITH THIS WEBSITE OR ANY CONTENT ON THE SITE, OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS WEBSITE.' (See, http://sites.target.com/site/en/spot/page.jsp?title=terms%5Fconditions.)

By the way, all uses of UPPER CASE in this article follow Web site use in what is the online equivalent of shouting.

ToysRUs takes the same approach:

'IN THE EVENT OF ANY PROBLEM WITH THIS WEB SITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEB SITE.' (See, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt.)

Well.

Walmart.com, home of the store-front greeter, at least uses a 'quiet' font to deliver the same message:

'If you do not agree to (or cannot comply with) any of these terms and conditions, do not use this Site.' (See, www.walmart.com/catalog/catalog.gsp?cat=538449#34886.)

While the ubiquitous 'No shirt, no shoes, no service' signs at resorts and urban and suburban stores alike at least serve a community-health purpose, I do not recall ever having received such a 'welcome' in a Target, ToysRUs or Wal-Mart bricks-and-mortar store as those that these retailers have slapped on their Web sites.

Indeed, one might wonder why a retail site would want to deny any potential customer access ' if such denial is even permitted to a business that may be treated as a 'public accommodation' under civil-rights laws ' technically, that is, as long as the denial is on a non-discriminatory basis (see, 'Targeting new e-Commerce Customers' in the December 2006 edition of e-Commerce Law and Strategy). Why should any e-commerce site choose to set up such legal barriers through rote use of traditional boilerplate, without thinking about whether it really applies in the 'new' (and now over a decade old) world of e-commerce? It's tantamount to putting out a banner that says, 'Sorry, we won't sell to you. We can even cancel what you already bought.'

Despite the warnings of a recession, many online businesses are apparently so busy that they can turn away business ' at least according to the warnings in their terms and conditions. Amazon, for instance, 'reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion' (see, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088). Wal-Mart takes the same position: 'Please note that there may be certain orders that we are unable to accept and must cancel. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason' (see, www.walmart.com/catalog/catalog.gsp?cat=538449#34886). At least Wal-Mart says please. ToysRUs is no better: 'We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer' (see, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt).

While the lawyers who write this boilerplate clearly have ethical and professional concerns for limiting their clients' sales, do they ever think that their clients that depend on sales may have a very different perspective?

We Can Change the Deal ' Whenever

As noted in the ISP article from the AP cited above, the right to unilaterally change terms, without notice, is a common provision in online agreements. However, as discussed in 'When Legal Spam Isn't Spam' (see, the December 2007 edition of e-Commerce Law & Strategy), courts have begun to question the enforceability of such clauses, depending on how fairly they have been disclosed to the customer. While such provisions may make legal and practical sense for ISPs, the functional equivalents of utility providers (and which may in fact be regulated), do such clauses make sense in a business built, in part, on pleasing a customer, and even encouraging a return visit? In fact, for the brave soul who dares to venture into the fine print to read the terms and conditions, knowing that he or she must theoretically do it every time the site is revisited, could be a powerful incentive to find another seller of the same item, simply to avoid reading the boilerplate again, and again, and '. For example, Amazon.com 'reserve(s) the right to make changes to (its) site, policies, and these Conditions of Use at any time' (see, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088). ToysRUs apparently feels so strongly about protecting its flexibility to change a deal that it mentions it several times:

'All features, content, specifications, products and prices of products and services described or depicted on www.toysrus.com and www.babiesrus.com are subject to change at any time without notice.' (See, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt.)

Similarly:

'In addition, we may make changes in information about price and availability without notice';

and

'We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.'

Target.com even seems to prefer that you read its legal boilerplate instead of looking at what it sells when you visit its site:

These Terms and Conditions May Change. Target.com reserves the right to update or modify these Terms and Conditions at any time without prior notice. Your use of this website following any such change constitutes your agreement to follow and be bound by the Terms and Conditions as changed. For this reason, we encourage you to review these Terms and Conditions whenever you use this website. (Emphasis added.) (See, http://sites.target.com/site/en/spot/page.jsp?title=terms%5Fconditions.)

What You See Is What You Get?

It should be no surprise that e-commerce Web sites often include disclaimers about the color and appearance of products shown online. That makes sense, because shopping occurs not in a controlled retail environment, but on millions of shoppers' monitors, with all the monitors' possible presentation-variation possibilities ' from an aging eight-color screen to a modern media-center unit. In fact, this approach mirrors the long-standing disclaimers found in Sunday newspaper circulars that not all models and colors are available in all stores, and in the Federal Trade Commission ('FTC') Telemark-eting Sales Rule (see, www.ftc.gov/bcp/edu/pubs/business/telemarketing/bus27.shtm).

Wal-Mart's disclaimer is typical:

'We have made every effort to display the colors of our products that appear on the Site as accurately as possible. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.'

Amazon.com goes beyond color in its disavowal of what it presents on its Web site:

'Amazon attempts to be as accurate as possible. However, Amazon does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by Amazon itself is not as described, your sole remedy is to return it in unused condition.'

Target.com makes a similar exception:

'We make no representation as to the completeness, accuracy or currentness of any information on this Web Site.'

ToyrsRUs.com won't even commit to its ability to send what it sold you.

'The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time.'

And, ToysRUs.com also disclaims something as objective and verifiable as weights and measures:

'Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only.'

Presumably, shipping charges based on the actual weights are not just a matter of 'convenience' and will still be due if the 'approximate' amount disclosed on the site proved well below the actual measurements used by the shipper in calculating charges.

The Price May Not Be Right

The FTC has regulated price advertising, particularly comparison pricing, for many years (e.g., www.ftc.gov/bcp/guides/decptprc.htm); specific rules exist even for:

• Certain pricing practices (e.g., the meaning of 'free' ' see, www.ftc.gov/bcp/guides/free.htm);
• Comparative advertising (see, www.ftc.gov/bcp/policystmt/ad-compare.htm);
• Statements on 'deception' (see, www.ftc.gov/bcp/policystmt/ad-decept.htm); and
• 'Unfairness' (see, www.ftc.gov/bcp/policystmt/ad-unfair.htm).

But Internet sellers, with dynamic pricing and inventory (that is, constantly adjusting in response to demand and costs), have created a Web of data that makes it somewhat difficult for consumers to understand exactly how a price compares to others. For example, Amazon.com has a whole 'policy' on pricing. Under that policy, the 'list price' may ' or may not ' be the price, depending on many factors:

'Except where noted otherwise, the List Price displayed for products on our website represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice. The List Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day.' (Emphasis added.) (See, www.amazon.com/gp/help/customer/display.html?nodeId=468502.)

In contrast, its competitors provide less-informative boilerplate about pricing errors (e.g., www.target.com/gp/browse.html?node=10824271 or www.walmart.com/catalog/catalog.gsp?cat=538449#34886).

We Don't Sell to Businesses

While no firm would appear to want to ignore business-to-business ('B2B') customers if its products were appropriate, many retail Web sites don't seem to want them; but will any firm really turn down a business customer prepared to buy, as the boilerplate implies? Most likely, this apparent disinterest reflects the different costs and compensation for selling to different channels, but from the perspective of the small entrepreneur, the consumer Web sites may be the easiest to use. For example, Amazon.com, Walmart.com and Target.com all state clear limits to 'non-commercial' sales in their terms and conditions. (Emphasis is added in all cases.)

For example, Target.com's restriction provides, 'The Content of this website, and the site as a whole, is intended solely for personal, noncommercial use by the users of our site.' Amazon.com similarly provides that 'Amazon grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Amazon. This license does not include any resale or commercial use of this site or its contents.' Walmart.com provides, 'All materials, including images, text, illustrations, designs, icons, photographs, programs, music clips or downloads, video clips and written and other materials that are part of this Site (collectively, the 'Contents') are intended solely for personal, non-commercial use.'

Don't Count On Us to Help You

Like many real-world businesses, these sites offer to help shoppers, but warn against relying on that help. Overstock.com, for example, bluntly states that: 'No oral advice or written information given by Overstock.com or its Associates shall create a warranty. You expressly agree that the use of the Site is at your sole risk' (see, https://help.overstock.com).

And while not as specific, Target.com's assumption-of-risk disclaimer is typical of the warning against trusting the information on Web sites in such agreements:

'THE TARGET CORPORATION BUSINESSES ASSUME NO RISK OR RESPONSIBILITY FOR YOUR USE OF ANY OF THE CONTENT PROVIDED ON THIS WEBSITE.'

These types of 'standard' provisions apply even more so where medical or health products are offered. Walmart.com's 'Pharmacy and Medical Content' disclaimer, for instance, resembles those in print advertising:

'THE DRUG INFORMATION AND INTERACTION CHECKER PROVIDED IN THE PHARMACY AREA OF THIS SITE IS PROVIDED BY GOLD STANDARD MULTIMEDIA. ALL OTHER MEDICAL CONTENT ON THE SITE IS PROVIDED BY THE PRODUCT SUPPLIER, AND NOT BY WALMART.COM. WALMART.COM AND ITS AFFILIATES DO NOT SPONSOR, RECOMMEND OR ENDORSE ANY THIRD PARTY, PRODUCT, SERVICE OR INFORMATION PROVIDED ON THIS SITE. ALL CONTENT, INCLUDING DRUG INTERACTION INFO- RMATION PROVIDED IN THE PHARMACY AREA OF THIS SITE, AND MEDICAL CONTENT PROVIDED IN ANY AREA OF THIS SITE, IS FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED, AND SHOULD NOT BE USED, AS A SUBSTITUTE FOR THE DIAGNOSIS, TREATMENT AND ADVICE OF A MEDICAL PROFESSIONAL. IT DOES NOT COVER ALL POSSIBLE USES, PRECAUTIONS, SIDE EFFECTS AND INTERACTIONS. IT MAY NOT CONTAIN ALL INFORMATION THAT IS APPLICABLE TO YOUR PERSONAL CIRCUMSTANCES AND SHOULD NOT BE CONSTRUED TO INDICATE THAT ANY DRUG IS SAFE FOR YOU. ALWAYS CONSULT YOUR MEDICAL PRO- FESSIONAL REGARDING ANY MEDICAL CONDITION AND BEFORE USING ANY PRESCRIPTION OR OVER THE COUNTER DRUGS. THE INFORMATION AND SERVICES ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU ACKNOWLEDGE BY YOUR USE OF THIS SITE THAT WALMART.COM AND ITS AFFILIATES AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE, DAMAGE OR LOSS RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THIS SITE. YOUR USE OF THIS SITE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE SITE.' (See, www.walmart.com/catalog/catalog.gsp?cat=538449#34886.)

Got that? Got an aspirin?

Who Ya Gonna Call?

Many Web sites seamlessly incorporate offerings from third parties ' and then deny responsibility for those offerings, leaving the customer with potential challenges in figuring out whom to call when they need help, much less getting that assistance. For example:

'Parties other than Amazon operate stores, provide services, or sell product lines on this site. For example, Shutterfly offers Photo Services in our Camera and Photo store, and other businesses and individuals offer products in Auctions. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Amazon does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.'

Similarly:

'THE TARGET CORPORATION BUSINESSES DO NOT ENDORSE NOR MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE OPTIONS OR OTHER
SERVICE OR DATA YOU MAY ACCESS, DOWNLOAD OR USE AS A RESULT OF THE USE OF THE INFORMATION CONTAINED ON THIS WEBSITE, OR ABOUT ANY WEBSITE YOU MAY ACCESS THROUGH THIS WEBSITE. LINKS TO OTHER SITES ARE PROVIDED FOR CONVENIENCE ONLY. YOU NEED TO MAKE YOUR OWN DECISIONS REGARDING YOUR INTERACTIONS OR COMMUNICATIONS WITH ANY OTHER WEBSITE.'

Should a problem arise, the customer will ' notwithstanding this language ' logically look first to the seller for help, rather than to the 'ghost' sites that get the benefit of being linked with a more popular site, with the customer possibly disappointed when the famous seller relies by these terms to claim an inability to help.

Do You Really Mean This?

Some unusual provisions exist outside e-commerce retail-sales sites. Google's Terms of Service (see, www.google.com/accounts/TOS?loc=US), for example, warn that it may cut users off from its offerings and the user's data ' surely a troubling feeling for those who rely on its many features, such as storing e-mail in Gmail or pictures in Picasa. The company says that: 'You acknowledge and agree that if Google disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.' Fortunately, however, in a provision that could only have been written by counsel with Google's widely praised playfulness, Google makes it easy to stop using its services. 'You may stop using the Services at any time. You do not need to specifically inform Google when you stop using the Services.'

Yahoo.com, being a more general site, includes several 'Special Admonitions' in its Terms of Service (see, http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html), such as for International Use, because of 'the global nature of the Internet, and 'For Services Relating to Financial Matters.' Indeed, the latter clause cuts through the typical legal boilerplate with a clear warning ' if anyone is still reading by paragraph 22 of the fine print. It says there: 'If you intend to create or join any service, receive or request any news, messages, alerts or other information from the Service concerning companies, stock quotes, investments or securities, please read the above Sections 19 and 20 again.' They go doubly for you. In addition, for this type of information particularly, the phrase Let the investor beware is apt. Indeed, because these warnings could apply to so many e-commerce websites, it is surprising that others do not use similar versions.

Similarly, the conditions in Yahoo.com's section 19e's safety warning would seem to apply to most e-commerce (and other) Web sites, yet such a clause is not typically present in most Terms of Use. It states:

'A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.'

Egregiously, Microsoft's boilerplate End User License Agreement for Windows (XP and Vista) cannot even promise that the licensee/purchaser will have an uncontested right to use the software ' notwithstanding that firm's reputation for defending its intellectual property. The agree states:

'ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.'

Of somewhat greater potential concern, however, is a provision buried deep in the YouTube.com Terms of Use (see, www.youtube.com/t/terms):

'For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.' (Emphasis added.)

In other words, in theory, a person who posts a video online that becomes commercially valuable could find himself or herself in competition with YouTube, because that clause lets YouTube use the material for its own benefit 'royalty-free.' While it is certainly unlikely that the site would intend to create such a disincentive to posting material online, perhaps its attorneys never consulted with their client about why and how people like to use the site before plugging in the standard boilerplate.

Adobe's Reconsideration

In fact, lest the reader think the concerns in this article are purely academic, never to surface in the real world, consider the public-relations blitz that Adobe encountered when it released its beta online version of Photoshop Express, with troubling provisions purporting to grant Adobe rights to users' photos stored online, much like the language cited above from YouTube (see, http://blogs.adobe.com/jnack/2008/03/a_note_about_ps.html). After being alerted to the problem, Adobe quickly withdrew any claims to be able to do what its lawyers' language may have permitted it to do ' to appropriate users' content for its own profit (see, http://blogs.adobe.com/jnack/2008/04/photoshop_expre_3.html). The company said:

The original terms of service implied things we would never do with the content within Photoshop Express. Thus, revisions were made to clarify our intent:

Adobe's Rights ' Abode has retained only those limited rights that allow us to operate the service and to enable you to do all the things the service offers. If you decide to terminate your Photoshop Express account, Adobe's rights also will be terminated. We don't claim ownership of your content and won't sell your images.

In other words, the fact that an e-commerce firm chooses not to enforce what its lawyers have written doesn't mean that the right to do so isn't there for when the need (or business opportunity) presents itself; on the other hand, as Adobe learned, the fact that courts will often enforce harsh language doesn't mean that the same company can't be shamed in the court of public opinion into acting reasonably and withdrawing such language ' after all, in the original story, David did slay Goliath.

But It Is Enforceable

In addition to all of these types of protective language more targeted to e-commerce business as described above, online terms and conditions also generally contain the 'normal' language that courts have for many years allowed businesses to use to protect themselves against lawsuits, but which consumers probably never read, whether they purchase items in a store or online. The FTC's Pre-Sale Availability Rule (16 CFR Part 702) 'requires that written warranties on consumer products costing more than $15 be made available to consumers before they buy,' and specifies what retailers, including mail order and catalog sellers, must do to accomplish this (see, www.ftc.gov/bcp/conline/pubs/buspubs/warranty.shtm and www.ftc.gov/bcp/edu/pubs/consumer/products/pro17.shtm). While many clients have told me that they assume such boilerplate that so strongly favors a seller cannot be enforced, the law in fact is quite clear to the opposite: business lawyers routinely use these clauses because they generally stand up in court. Because they are so frequently used, I will only briefly discuss how a purchaser's rights are normally limited by common boilerplate.

For example, the exclusion of 'implied warranties' means that unless the seller has specifically promised that a widget will do whatever a widget does ('merchantability'), the purchaser has no claim that the product is defective ' no warranty exists. Similarly, there is no contractually binding promise that a product will meet a stated need identified by the customer, even if the seller knew about that need (or helped select the product), unless the seller has specifically promised in writing that the product will meet that need; this is the exclusion of the warranty of fitness for a particular purpose.

'Exclusive remedy' and 'Limitation of Consequential Damages' provisions usually mean that if the seller must take the product back, it need only return the purchase price, with no responsibility for the losses suffered when the product did not perform as the buyer had expected.

'Exclusive jurisdiction' clauses force a customer willing to take a dispute to court to go to a location selected by the seller, potentially distant from the customer, regardless of the cost of doing so, and where the seller probably already has attorneys on retainer to defend itself.

Each of these clauses has become so standard in commercial practice that attorneys (much less consumers) rarely question their use, yet many may be surprised to read a 'plain English' explanation of their meaning. (Of course, courts have decided many cases involving these clauses, but typically only on how they are applied to particular facts, rather than to their legality or enforceability in the first place.)

The End of the World Clause

Let's conclude this discussion of offensive boilerplate with fine print that redefines the long-term impact of a contract with what contract lawyers know as the fictional 'end of the world clause,' a reasonably well known example of drafting humor involving a section with potential consequences far worse than anything described in the examples cited in this article. Consider, for instance:

The occurrence of the end of the world prior to the complete performance by Tenant of the terms, covenants and conditions of this Lease ' shall permit Landlord to accelerate and demand payment for all charges which remain as an obligation of Tenant under this Lease, and Landlord's collection of monies due from Tenant may be pursued by an immediately available procedure. For all purposes hereunder ' such notice [shall] be given to Tenant by the then prevailing medium of communication. Landlord shall be deemed aligned with the Forces of Light and Tenant shall be deemed allied with the Powers of Darkness notwithstanding either party's final ordered placement' (see, www.texasbar.com/saywhat/weblog/2004_08_01_archive.html; a more aggressive version of the same language invoking the stronger party's right to 'any available terrestrial, extraterrestrial or spiritual' remedial procedure appears at www.ollonfriday.com/story887.htm).

Seriously, Think About It

While we all can laugh at this grafting of the mundane onto the sublime, what if your client actually signed a document with that clause buried in the boilerplate because you had skipped over it? (When I was a young lawyer, I received a document with such a clause and enjoyed our senior partner's ability to gain negotiating leverage with the embarrassed drafter, who had not alerted us or his client to its presence until I pointed it out ' and the potential embarrassment if our client had signed the 'usual boilerplate' without reading it.)

To wit: the overly aggressive 'terms of service' found so often online risk the same potential harm for the e-commerce business that blindly incorporates them into its Web site, at best, and the risk that a court may throw out the entire contract if it determines that the terms are unreasonable, perhaps at worst. While the fictional clause may be unenforceable in the intended court of final jurisdiction, which may not care much either way about Web site terms of use, the presence of obnoxious terms could harm a client in the real world if the decision-maker perceives a fundamental unfairness. Since businesses enforce the 'worst' terms so rarely, perhaps drafters should (in consultation with their clients) consider what rights they really need so that they can avoid unintended adverse consequences, in the law ' and in the real world.

In the bricks-and-mortar-world, not many businesses would survive if they told customers to 'Keep Out!'

Yet the typical e-commerce 'Terms and Conditions,' the electronic equivalent of the fine-print contract that governs use of a sales Web site, creates such an unfriendly shopping environment that it makes the legendary 'No soup for you!' restaurant of the television situation comedy Seinfeld seem like the Welcome Wagon.

Although I have often written about how the law affecting e-commerce firms ordinarily follows traditional law, the common e-commerce contract stands in stark contrast. Consider the following clauses from actual online agreements obtained in April and May ' and whether you have ever seen anything comparable in any real-world store, much less these Web stores' real-world affiliates. A comparable analysis of Internet service providers' ('ISPs') contracts by Associated Press ('AP') Technology Writer Peter Svensson is available at www.theledger.com/article/20080403/BREAKING/356559410, but here, the problem of oppressive boilerplate seems even more misplaced in the 'customer is always right' culture of retailers. Even worse, such language is deeply buried in boilerplate, often hidden behind a fine-print link read only by those doing due diligence or sorting out the mess after a problem occurs.

While the question of the fairness of non-negotiable boilerplate contracts is beyond the scope of this article, the appearance online of such uncharacteristically unfriendly clauses would certainly shock the typical customer (or consumer advocate).

(Editor's note: For more on this topic, see, 'Unconscionable Clauses Prevent Enforceability of e-Commerce Contracts' in this issue.)

Obnoxious Boilerplate Can Hurt an e-Business

Keep Out!

Target.com tells its customers quite bluntly that they must abide by its terms, or leave:

'IF YOU ARE DISSATISFIED WITH THIS WEBSITE OR ANY CONTENT ON THE SITE, OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS WEBSITE.' (See, http://sites.target.com/site/en/spot/page.jsp?title=terms%5Fconditions.)

By the way, all uses of UPPER CASE in this article follow Web site use in what is the online equivalent of shouting.

ToysRUs takes the same approach:

'IN THE EVENT OF ANY PROBLEM WITH THIS WEB SITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEB SITE.' (See, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt.)

Well.

Walmart.com, home of the store-front greeter, at least uses a 'quiet' font to deliver the same message:

'If you do not agree to (or cannot comply with) any of these terms and conditions, do not use this Site.' (See, www.walmart.com/catalog/catalog.gsp?cat=538449#34886.)

While the ubiquitous 'No shirt, no shoes, no service' signs at resorts and urban and suburban stores alike at least serve a community-health purpose, I do not recall ever having received such a 'welcome' in a Target, ToysRUs or Wal-Mart bricks-and-mortar store as those that these retailers have slapped on their Web sites.

Indeed, one might wonder why a retail site would want to deny any potential customer access ' if such denial is even permitted to a business that may be treated as a 'public accommodation' under civil-rights laws ' technically, that is, as long as the denial is on a non-discriminatory basis (see, 'Targeting new e-Commerce Customers' in the December 2006 edition of e-Commerce Law and Strategy). Why should any e-commerce site choose to set up such legal barriers through rote use of traditional boilerplate, without thinking about whether it really applies in the 'new' (and now over a decade old) world of e-commerce? It's tantamount to putting out a banner that says, 'Sorry, we won't sell to you. We can even cancel what you already bought.'

Despite the warnings of a recession, many online businesses are apparently so busy that they can turn away business ' at least according to the warnings in their terms and conditions. Amazon, for instance, 'reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion' (see, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088). Wal-Mart takes the same position: 'Please note that there may be certain orders that we are unable to accept and must cancel. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason' (see, www.walmart.com/catalog/catalog.gsp?cat=538449#34886). At least Wal-Mart says please. ToysRUs is no better: 'We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer' (see, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt).

While the lawyers who write this boilerplate clearly have ethical and professional concerns for limiting their clients' sales, do they ever think that their clients that depend on sales may have a very different perspective?

We Can Change the Deal ' Whenever

As noted in the ISP article from the AP cited above, the right to unilaterally change terms, without notice, is a common provision in online agreements. However, as discussed in 'When Legal Spam Isn't Spam' (see, the December 2007 edition of e-Commerce Law & Strategy), courts have begun to question the enforceability of such clauses, depending on how fairly they have been disclosed to the customer. While such provisions may make legal and practical sense for ISPs, the functional equivalents of utility providers (and which may in fact be regulated), do such clauses make sense in a business built, in part, on pleasing a customer, and even encouraging a return visit? In fact, for the brave soul who dares to venture into the fine print to read the terms and conditions, knowing that he or she must theoretically do it every time the site is revisited, could be a powerful incentive to find another seller of the same item, simply to avoid reading the boilerplate again, and again, and '. For example, Amazon.com 'reserve(s) the right to make changes to (its) site, policies, and these Conditions of Use at any time' (see, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088). ToysRUs apparently feels so strongly about protecting its flexibility to change a deal that it mentions it several times:

'All features, content, specifications, products and prices of products and services described or depicted on www.toysrus.com and www.babiesrus.com are subject to change at any time without notice.' (See, www.toysrus.com/helpdesk/index.jsp?display=safety&subdisplay=terms&clickid=botnav_terms_txt.)

Similarly:

'In addition, we may make changes in information about price and availability without notice';

and

'We reserve the right to change, suspend, or discontinue all or any aspect of this Web Site at any time without notice.'

Target.com even seems to prefer that you read its legal boilerplate instead of looking at what it sells when you visit its site:

These Terms and Conditions May Change. Target.com reserves the right to update or modify these Terms and Conditions at any time without prior notice. Your use of this website following any such change constitutes your agreement to follow and be bound by the Terms and Conditions as changed. For this reason, we encourage you to review these Terms and Conditions whenever you use this website. (Emphasis added.) (See, http://sites.target.com/site/en/spot/page.jsp?title=terms%5Fconditions.)

What You See Is What You Get?

It should be no surprise that e-commerce Web sites often include disclaimers about the color and appearance of products shown online. That makes sense, because shopping occurs not in a controlled retail environment, but on millions of shoppers' monitors, with all the monitors' possible presentation-variation possibilities ' from an aging eight-color screen to a modern media-center unit. In fact, this approach mirrors the long-standing disclaimers found in Sunday newspaper circulars that not all models and colors are available in all stores, and in the Federal Trade Commission ('FTC') Telemark-eting Sales Rule (see, www.ftc.gov/bcp/edu/pubs/business/telemarketing/bus27.shtm).

Wal-Mart's disclaimer is typical:

'We have made every effort to display the colors of our products that appear on the Site as accurately as possible. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.'

Amazon.com goes beyond color in its disavowal of what it presents on its Web site:

'Amazon attempts to be as accurate as possible. However, Amazon does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by Amazon itself is not as described, your sole remedy is to return it in unused condition.'

Target.com makes a similar exception:

'We make no representation as to the completeness, accuracy or currentness of any information on this Web Site.'

ToyrsRUs.com won't even commit to its ability to send what it sold you.

'The inclusion of any products or services on this Web Site at a particular time does not imply or warrant that these products or services will be available at any time.'

And, ToysRUs.com also disclaims something as objective and verifiable as weights and measures:

'Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only.'

Presumably, shipping charges based on the actual weights are not just a matter of 'convenience' and will still be due if the 'approximate' amount disclosed on the site proved well below the actual measurements used by the shipper in calculating charges.

The Price May Not Be Right

The FTC has regulated price advertising, particularly comparison pricing, for many years (e.g., www.ftc.gov/bcp/guides/decptprc.htm); specific rules exist even for:

• Certain pricing practices (e.g., the meaning of 'free' ' see, www.ftc.gov/bcp/guides/free.htm);
• Comparative advertising (see, www.ftc.gov/bcp/policystmt/ad-compare.htm);
• Statements on 'deception' (see, www.ftc.gov/bcp/policystmt/ad-decept.htm); and
• 'Unfairness' (see, www.ftc.gov/bcp/policystmt/ad-unfair.htm).

But Internet sellers, with dynamic pricing and inventory (that is, constantly adjusting in response to demand and costs), have created a Web of data that makes it somewhat difficult for consumers to understand exactly how a price compares to others. For example, Amazon.com has a whole 'policy' on pricing. Under that policy, the 'list price' may ' or may not ' be the price, depending on many factors:

'Except where noted otherwise, the List Price displayed for products on our website represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice. The List Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day.' (Emphasis added.) (See, www.amazon.com/gp/help/customer/display.html?nodeId=468502.)

In contrast, its competitors provide less-informative boilerplate about pricing errors (e.g., www.target.com/gp/browse.html?node=10824271 or www.walmart.com/catalog/catalog.gsp?cat=538449#34886).

We Don't Sell to Businesses

While no firm would appear to want to ignore business-to-business ('B2B') customers if its products were appropriate, many retail Web sites don't seem to want them; but will any firm really turn down a business customer prepared to buy, as the boilerplate implies? Most likely, this apparent disinterest reflects the different costs and compensation for selling to different channels, but from the perspective of the small entrepreneur, the consumer Web sites may be the easiest to use. For example, Amazon.com, Walmart.com and Target.com all state clear limits to 'non-commercial' sales in their terms and conditions. (Emphasis is added in all cases.)

For example, Target.com's restriction provides, 'The Content of this website, and the site as a whole, is intended solely for personal, noncommercial use by the users of our site.' Amazon.com similarly provides that 'Amazon grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Amazon. This license does not include any resale or commercial use of this site or its contents.' Walmart.com provides, 'All materials, including images, text, illustrations, designs, icons, photographs, programs, music clips or downloads, video clips and written and other materials that are part of this Site (collectively, the 'Contents') are intended solely for personal, non-commercial use.'

Don't Count On Us to Help You

Like many real-world businesses, these sites offer to help shoppers, but warn against relying on that help. Overstock.com, for example, bluntly states that: 'No oral advice or written information given by Overstock.com or its Associates shall create a warranty. You expressly agree that the use of the Site is at your sole risk' (see, https://help.overstock.com).

And while not as specific, Target.com's assumption-of-risk disclaimer is typical of the warning against trusting the information on Web sites in such agreements:

'THE TARGET CORPORATION BUSINESSES ASSUME NO RISK OR RESPONSIBILITY FOR YOUR USE OF ANY OF THE CONTENT PROVIDED ON THIS WEBSITE.'

These types of 'standard' provisions apply even more so where medical or health products are offered. Walmart.com's 'Pharmacy and Medical Content' disclaimer, for instance, resembles those in print advertising:

'THE DRUG INFORMATION AND INTERACTION CHECKER PROVIDED IN THE PHARMACY AREA OF THIS SITE IS PROVIDED BY GOLD STANDARD MULTIMEDIA. ALL OTHER MEDICAL CONTENT ON THE SITE IS PROVIDED BY THE PRODUCT SUPPLIER, AND NOT BY WALMART.COM. WALMART.COM AND ITS AFFILIATES DO NOT SPONSOR, RECOMMEND OR ENDORSE ANY THIRD PARTY, PRODUCT, SERVICE OR INFORMATION PROVIDED ON THIS SITE. ALL CONTENT, INCLUDING DRUG INTERACTION INFO- RMATION PROVIDED IN THE PHARMACY AREA OF THIS SITE, AND MEDICAL CONTENT PROVIDED IN ANY AREA OF THIS SITE, IS FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED, AND SHOULD NOT BE USED, AS A SUBSTITUTE FOR THE DIAGNOSIS, TREATMENT AND ADVICE OF A MEDICAL PROFESSIONAL. IT DOES NOT COVER ALL POSSIBLE USES, PRECAUTIONS, SIDE EFFECTS AND INTERACTIONS. IT MAY NOT CONTAIN ALL INFORMATION THAT IS APPLICABLE TO YOUR PERSONAL CIRCUMSTANCES AND SHOULD NOT BE CONSTRUED TO INDICATE THAT ANY DRUG IS SAFE FOR YOU. ALWAYS CONSULT YOUR MEDICAL PRO- FESSIONAL REGARDING ANY MEDICAL CONDITION AND BEFORE USING ANY PRESCRIPTION OR OVER THE COUNTER DRUGS. THE INFORMATION AND SERVICES ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU ACKNOWLEDGE BY YOUR USE OF THIS SITE THAT WALMART.COM AND ITS AFFILIATES AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE, DAMAGE OR LOSS RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THIS SITE. YOUR USE OF THIS SITE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE SITE.' (See, www.walmart.com/catalog/catalog.gsp?cat=538449#34886.)

Got that? Got an aspirin?

Who Ya Gonna Call?

Many Web sites seamlessly incorporate offerings from third parties ' and then deny responsibility for those offerings, leaving the customer with potential challenges in figuring out whom to call when they need help, much less getting that assistance. For example:

'Parties other than Amazon operate stores, provide services, or sell product lines on this site. For example, Shutterfly offers Photo Services in our Camera and Photo store, and other businesses and individuals offer products in Auctions. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Amazon does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.'

Similarly:

'THE TARGET CORPORATION BUSINESSES DO NOT ENDORSE NOR MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE OPTIONS OR OTHER
SERVICE OR DATA YOU MAY ACCESS, DOWNLOAD OR USE AS A RESULT OF THE USE OF THE INFORMATION CONTAINED ON THIS WEBSITE, OR ABOUT ANY WEBSITE YOU MAY ACCESS THROUGH THIS WEBSITE. LINKS TO OTHER SITES ARE PROVIDED FOR CONVENIENCE ONLY. YOU NEED TO MAKE YOUR OWN DECISIONS REGARDING YOUR INTERACTIONS OR COMMUNICATIONS WITH ANY OTHER WEBSITE.'

Should a problem arise, the customer will ' notwithstanding this language ' logically look first to the seller for help, rather than to the 'ghost' sites that get the benefit of being linked with a more popular site, with the customer possibly disappointed when the famous seller relies by these terms to claim an inability to help.

Do You Really Mean This?

Some unusual provisions exist outside e-commerce retail-sales sites. Google's Terms of Service (see, www.google.com/accounts/TOS?loc=US), for example, warn that it may cut users off from its offerings and the user's data ' surely a troubling feeling for those who rely on its many features, such as storing e-mail in Gmail or pictures in Picasa. The company says that: 'You acknowledge and agree that if Google disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.' Fortunately, however, in a provision that could only have been written by counsel with Google's widely praised playfulness, Google makes it easy to stop using its services. 'You may stop using the Services at any time. You do not need to specifically inform Google when you stop using the Services.'

Yahoo.com, being a more general site, includes several 'Special Admonitions' in its Terms of Service (see, http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html), such as for International Use, because of 'the global nature of the Internet, and 'For Services Relating to Financial Matters.' Indeed, the latter clause cuts through the typical legal boilerplate with a clear warning ' if anyone is still reading by paragraph 22 of the fine print. It says there: 'If you intend to create or join any service, receive or request any news, messages, alerts or other information from the Service concerning companies, stock quotes, investments or securities, please read the above Sections 19 and 20 again.' They go doubly for you. In addition, for this type of information particularly, the phrase Let the investor beware is apt. Indeed, because these warnings could apply to so many e-commerce websites, it is surprising that others do not use similar versions.

Similarly, the conditions in Yahoo.com's section 19e's safety warning would seem to apply to most e-commerce (and other) Web sites, yet such a clause is not typically present in most Terms of Use. It states:

'A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.'

Egregiously, Microsoft's boilerplate End User License Agreement for Windows (XP and Vista) cannot even promise that the licensee/purchaser will have an uncontested right to use the software ' notwithstanding that firm's reputation for defending its intellectual property. The agree states:

'ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.'

Of somewhat greater potential concern, however, is a provision buried deep in the YouTube.com Terms of Use (see, www.youtube.com/t/terms):

'For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.' (Emphasis added.)

In other words, in theory, a person who posts a video online that becomes commercially valuable could find himself or herself in competition with YouTube, because that clause lets YouTube use the material for its own benefit 'royalty-free.' While it is certainly unlikely that the site would intend to create such a disincentive to posting material online, perhaps its attorneys never consulted with their client about why and how people like to use the site before plugging in the standard boilerplate.

Adobe's Reconsideration

In fact, lest the reader think the concerns in this article are purely academic, never to surface in the real world, consider the public-relations blitz that Adobe encountered when it released its beta online version of Photoshop Express, with troubling provisions purporting to grant Adobe rights to users' photos stored online, much like the language cited above from YouTube (see, http://blogs.adobe.com/jnack/2008/03/a_note_about_ps.html). After being alerted to the problem, Adobe quickly withdrew any claims to be able to do what its lawyers' language may have permitted it to do ' to appropriate users' content for its own profit (see, http://blogs.adobe.com/jnack/2008/04/photoshop_expre_3.html). The company said:

The original terms of service implied things we would never do with the content within Photoshop Express. Thus, revisions were made to clarify our intent:

Adobe's Rights ' Abode has retained only those limited rights that allow us to operate the service and to enable you to do all the things the service offers. If you decide to terminate your Photoshop Express account, Adobe's rights also will be terminated. We don't claim ownership of your content and won't sell your images.

In other words, the fact that an e-commerce firm chooses not to enforce what its lawyers have written doesn't mean that the right to do so isn't there for when the need (or business opportunity) presents itself; on the other hand, as Adobe learned, the fact that courts will often enforce harsh language doesn't mean that the same company can't be shamed in the court of public opinion into acting reasonably and withdrawing such language ' after all, in the original story, David did slay Goliath.

But It Is Enforceable

In addition to all of these types of protective language more targeted to e-commerce business as described above, online terms and conditions also generally contain the 'normal' language that courts have for many years allowed businesses to use to protect themselves against lawsuits, but which consumers probably never read, whether they purchase items in a store or online. The FTC's Pre-Sale Availability Rule (16 CFR Part 702) 'requires that written warranties on consumer products costing more than $15 be made available to consumers before they buy,' and specifies what retailers, including mail order and catalog sellers, must do to accomplish this (see, www.ftc.gov/bcp/conline/pubs/buspubs/warranty.shtm and www.ftc.gov/bcp/edu/pubs/consumer/products/pro17.shtm). While many clients have told me that they assume such boilerplate that so strongly favors a seller cannot be enforced, the law in fact is quite clear to the opposite: business lawyers routinely use these clauses because they generally stand up in court. Because they are so frequently used, I will only briefly discuss how a purchaser's rights are normally limited by common boilerplate.

For example, the exclusion of 'implied warranties' means that unless the seller has specifically promised that a widget will do whatever a widget does ('merchantability'), the purchaser has no claim that the product is defective ' no warranty exists. Similarly, there is no contractually binding promise that a product will meet a stated need identified by the customer, even if the seller knew about that need (or helped select the product), unless the seller has specifically promised in writing that the product will meet that need; this is the exclusion of the warranty of fitness for a particular purpose.

'Exclusive remedy' and 'Limitation of Consequential Damages' provisions usually mean that if the seller must take the product back, it need only return the purchase price, with no responsibility for the losses suffered when the product did not perform as the buyer had expected.

'Exclusive jurisdiction' clauses force a customer willing to take a dispute to court to go to a location selected by the seller, potentially distant from the customer, regardless of the cost of doing so, and where the seller probably already has attorneys on retainer to defend itself.

Each of these clauses has become so standard in commercial practice that attorneys (much less consumers) rarely question their use, yet many may be surprised to read a 'plain English' explanation of their meaning. (Of course, courts have decided many cases involving these clauses, but typically only on how they are applied to particular facts, rather than to their legality or enforceability in the first place.)

The End of the World Clause

Let's conclude this discussion of offensive boilerplate with fine print that redefines the long-term impact of a contract with what contract lawyers know as the fictional 'end of the world clause,' a reasonably well known example of drafting humor involving a section with potential consequences far worse than anything described in the examples cited in this article. Consider, for instance:

The occurrence of the end of the world prior to the complete performance by Tenant of the terms, covenants and conditions of this Lease ' shall permit Landlord to accelerate and demand payment for all charges which remain as an obligation of Tenant under this Lease, and Landlord's collection of monies due from Tenant may be pursued by an immediately available procedure. For all purposes hereunder ' such notice [shall] be given to Tenant by the then prevailing medium of communication. Landlord shall be deemed aligned with the Forces of Light and Tenant shall be deemed allied with the Powers of Darkness notwithstanding either party's final ordered placement' (see, www.texasbar.com/saywhat/weblog/2004_08_01_archive.html; a more aggressive version of the same language invoking the stronger party's right to 'any available terrestrial, extraterrestrial or spiritual' remedial procedure appears at www.ollonfriday.com/story887.htm).

Seriously, Think About It

While we all can laugh at this grafting of the mundane onto the sublime, what if your client actually signed a document with that clause buried in the boilerplate because you had skipped over it? (When I was a young lawyer, I received a document with such a clause and enjoyed our senior partner's ability to gain negotiating leverage with the embarrassed drafter, who had not alerted us or his client to its presence until I pointed it out ' and the potential embarrassment if our client had signed the 'usual boilerplate' without reading it.)

To wit: the overly aggressive 'terms of service' found so often online risk the same potential harm for the e-commerce business that blindly incorporates them into its Web site, at best, and the risk that a court may throw out the entire contract if it determines that the terms are unreasonable, perhaps at worst. While the fictional clause may be unenforceable in the intended court of final jurisdiction, which may not care much either way about Web site terms of use, the presence of obnoxious terms could harm a client in the real world if the decision-maker perceives a fundamental unfairness. Since businesses enforce the 'worst' terms so rarely, perhaps drafters should (in consultation with their clients) consider what rights they really need so that they can avoid unintended adverse consequences, in the law ' and in the real world.