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Lawsuit against Zappos' TOS page a wake up call for some marketers?

by Marc2008
9 replies
Hey Warriors

I came across this article today. Wow: do you think TOS pages is something we as marketers need take more seriously? It turns out a "fast-and-loose" Terms of service page is not going to cut it anymore.

It seems like they (courts and maybe FTC) now want us to "confirm" that our customers have really have read and understand our site's TOS. No more putting the TOS at the bottom of the page in small, thin print. (I'M NOT saying everyone does this.)

Zappos.com actually lost their lawsuit because of a poorly implemented TOS page!

What do you all think about this? Should we start to get real, legal advice when creating a TOS contract/page for our different websites?

And look.... I understand many of you may already have good TOS pages, but I also know many may not - like many new and SOME advanced affiliate marketers. Is this really a wake call? Maybe it's not a big deal to most of you, but I would still like to hear your thoughts - especially some veteran Warriors and webmasters.

Website and app owners beware: Your Terms of Service may no longer pass court muster
Terms of Service Page/Contract Lawsuit
#call #lawsuit #marketers #page #tos #wake #zappos
  • Profile picture of the author J Bold
    Quite interesting.

    They obviously ran into a problem because they kept customer financial data for future purchases, I would imagine? I know some websites make you click you agree to terms and conditions before purchase, or at least once. Should be easy enough to do for a site like Zappos.

    Not sure what the implications are for every website on the internet, though.
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  • Profile picture of the author J Bold
    Interesting, from a lawyer. A dead simple way to avoid the "Zappos problem"

    "Using Clickthrough Agreements. Zappos had an easy way to form a clickthrough agreement. As shoppers are checking out of the store with their shopping cart, Zappos could say "By clicking the 'purchase' button, you agree to the Zappos terms of use" with a link to the document. It's as easy as that. No custom coding, no interstitial web pages, no real risk of abandoned shopping carts."

    Technology & Marketing Law Blog: How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked (Forbes Cross-Post)
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  • Profile picture of the author Green Moon
    One point to keep in mind is that just because everyone else seems to be doing something doesn't make it right. Like Zapppos, there are thousands of terms of use that don't require any form of assent. There is no safety in numbers. If it is wrong for Zappos, it is wrong for all the thousand of websites that do the same thing.

    It doesn't stop with the form of assent, either. If your TOS is not well thought out, the fact that the user agrees to it is of little comfort to you. Eric Goldman discussed the provision allowing the website to unilaterally amend its agreement as a provision that can kill the contract. There are others that may not be as fatal but can still cause tremendous damage to the website owner. Don't assume that just because a lot of other websites have the same language that it is good or sufficient.
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    • Profile picture of the author Marc2008
      Originally Posted by Green Moon View Post

      One point to keep in mind is that just because everyone else seems to be doing something doesn't make it right. Like Zapppos, there are thousands of terms of use that don't require any form of assent. There is no safety in numbers. If it is wrong for Zappos, it is wrong for all the thousand of websites that do the same thing.

      It doesn't stop with the form of assent, either. If your TOS is not well thought out, the fact that the user agrees to it is of little comfort to you. Eric Goldman discussed the provision allowing the website to unilaterally amend its agreement as a provision that can kill the contract. There are others that may not be as fatal but can still cause tremendous damage to the website owner. Don't assume that just because a lot of other websites have the same language that it is good or sufficient.
      Good damn points!

      I could not agree more, and that's why this has me a little concerned. That's what I am gathering from this. Be careful with the TOS templates floating around. There is no one TOS template size fits all anymore. Like I said in my previous post, after this ruling, it will be interesting to see if the big G and the FTC pick up on this and decide to start putting marketer's TOS pages/contracts under much more scrutiny. Mainly the FTC.

      Thanks for commenting! Again, I agree with you.
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