Does putting terms conditions the bottom of the page

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Chapter 9 / Exercise 125
Business English
Guffey/Seefer
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Does putting “Terms & Conditions” @ the bottom of the page create a K with anyone using the website? NO, not like other websites where you actually have to click on “Agree”. Easily bypass b/c @ bottom of page in small print. 3) Specht v. Netscape: Π’s allege that usage of Δ’s software transmits to Δs private info. about user’s file transfer activity on the Internet. Δ says they are subject to a binding arbitration clause in the End User License Agreement located at very bottom of download screen & not necessary to click on before download. Download is free. Does an offer of a license agreement, made independently of freely offered software & not expressly accepted by a user of that software bind the user to an arbitration clause contained in license? Unless Π’s agreed to the License Agreement, they cannot be bound by the arbitration clause Rule: in order for K to be binding, both parties must assent to be bound a) unawareness: Π is not made aware that he is entering into K (not required to agree before download) b) free of charge: like free neighborhood paper, there for the taking 38
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Business English
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Chapter 9 / Exercise 125
Business English
Guffey/Seefer
Expert Verified
39 c) invitation: “Please review”, reads as a mere invitation, not as a condition SHRINK WRAP: package, once you open it and use product, you’re bound. CLICK WRAP: once you click to use, you’re bound (like Caspi). BROWSE WRAP: no need to do anything affirmative to assent before go on to use product. F3: Chapter 5. Discerning the Agreement Interpreting the Meaning of the Terms AMBIGUITY : When two parties attach different meanings to a condition in a contract and one party didn’t have any reason to know of the other’s interpretation ( Raffles ). Ambiguity cases constitute one of the few real exceptions to the objective theory, because we look to see what each party was thinking, and how they interpreted the contract . Example : If just $5620 is written. Does this mean $5,620 or $56.20? A single term is applied to two very different things. (In this case, it is unlikely that a P would win.) VAGUENESS : When the parties knew the appropriate meaning, but just didn’t specify it in the contract ( Frigaliment ). Use of a general term, which isn’t specific enough! (It’s possible for a P to win, but still unlikely). E&E Notes: For a K to fail for indefiniteness, there must be an incurable uncertainty about what the parties agreed to, so that their intent to enter into a K is in doubt, or the court cannot establish a basis for enforcing what was agreed. The uncertainty must relate to a material aspect of the relationship. Both UCC 2,204(3) and Rest. 2d. § 33(2) emphasize that a K should be treated as reasonably certain if the language of the agreement, interpreted in context and in light of legal rules, provides enough content to establish an intent to contract, a basis for finding breachm and means of providing a remedy.

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