1. K EY COMPONENTS OF W EB S ITE T ERMS OF U SE AND I SSUES OF M UTUAL A SSENT AND E NFORCEABILITY Lucille M. Ponte Associate Professor of Law Florida Coastal School of Law lponte@fcsl.edu Prof. Ponte wishes to acknowledge and thank Miles Weeks Mader, Research Assistant and Candidate for JD in 2010, Florida Coastal School of Law, for his research efforts on this project.

2. K EY C OMPONENTS OF W EB S ITE T ERMS OF U SE Eligibility to Use Site Age/Geography Use Restrictions Codes of Conduct Monitoring/Account Termination Boilerplate Provisions Indemnification Limits on Liability Third Party Links Choice of Forum/Law Scope of Agreement Future Amendments Site Ownership Limited License to Use Reserving IP Rights Deep Linking, Bots Privacy Policy Data Collection, Use, Retention Warranties and/or Disclaimer of Warranties USER-RELATED TERMS OWNER-RELATED TERMS

3. COMMON LEGAL CHALLENGES TO TERMS OF USE CLICKWRAP VS. BROWSEWRAP Issues of Assent - Actual or Constructive Notice Consumers vs. Commercial Entities/Competitors LACK OF MUTUAL ASSENT - Specht Placement of Text Box/Link Language on Web Page regarding Terms of Use Opportunity to Review Terms before Assent - Scrolling Requiring Affirmative Assent (“I Agree”/”I Don’t Agree”) Opportunity to Discontinue Use or Seek Refund Upon Review of or Notice of Change in Terms of Use MIXED OUTCOMES IN ONLINE CASES DEPENDING UPON STATE LAW/PRECEDENT

4. EXAMPLE OF DIALOG BOX Google Images, image available at www.quark.com/.../qla/installing_qla_mac.html

5. COMMON LEGAL CHALLENGES TO TERMS OF USE PUBLIC POLICY Contrary to Constitution, Statute, Judicial Precedent? Consumer Protection Laws. State Views on Class Action Proceedings. UNCONSCIONABILITY Equitable Principles/Good Faith & Fair Dealing Procedural – Integrity of K Formation/ Negotiation Substantive – Fairness of K Terms Unfair surprise? Oppressively harsh/one-sided? MIXED OUTCOMES IN ONLINE CASES DEPENDING UPON STATE LAW/PRECEDENT

6. BRAGG V. LINDEN (ICC A RB. C LAUSE – CA L AW ) Pro. Unconscionable K of Adhesion/Not Negotiable. No Reasonable market alternatives. Arb. clause buried in fine print. Sub. Unconscionable Harsh, one-sided terms. Excessive costs of arbitration/fee-sharing. Venue intended to shield Linden from liability. Confidentiality clause results in uneven playing field. No showing of legitimate business need.