Takeaway: make sure your users click-to-agree on your terms of use. Referencing them in the fine print somewhere isn't safe.<p>Professor Goldman often makes this comment:
> "there are two types of online terms: mandatory click-through agreements and everything else, which I’ll call '<i>things that aren’t contracts</i>.'”<p>Secondary takeaway - you probably want a <i>mandatory arbitration</i> clause in your terms of service. Discuss it with your lawyer, but arbitration is often far less expensive and less distracting for a startup (compared to litigation).
The future is scary. There isn't the time in the day for anyone to read all this legalese for every single service they use.<p>Imagine if you had to read the terms & service of every supermarket you walked into. Every convenience store.
I got about halfway through before my eyes glazed over. Anecdotally, this sentence struck a chord:<p>"But in the court’s eyes, this is not enough. The court seems to say that there should be 'something more' drawing the user’s attention to the terms, such as contrasting text or a warning...."<p>We were recently advised by external counsel that our privacy policy and safe harbor links were not adequately visible (they're just plain text at the bottom of every page), and restyled them accordingly. ymmv.