In a court case for hacking, Zappos tried to invoke their browse wrap ToS clause for arbitration, which the court struck down. It was unenforceable for these re

In a court case for hacking, Zappos tried to invoke their browse wrap ToS clause for arbitration, which the court struck down. It was unenforceable for these reasons: • Zappos placed a link to its Terms of Use between the middle and bottom of each page, only visible if a user scrolls down. • If the Zappos.com homepage is printed to hard copy, the link appears on page 3 of 4. • The Terms of Use link was the same size, font, and color as most other non-significant links. • The website did not direct a user to the Terms of Use when creating an account, logging into an existing account, or making a purchase. This describes Terms of Use links for virtually all sites, even today. I'd say that this makes browse wrap very shaky, legally. [1]: http://www.cairncross.com/eatdrinkshopstay/are-the-terms-of-use-on-your-website-an-enforceable-agreement/ http://www.cairncross.com/eatdrinkshopstay/are-the-terms-of-... [2]: https://docs.justia.com/cases/federal/district-courts/nevada/nvdce/3:2012cv00325/88233/21/ https://docs.justia.com/cases/federal/district-courts/nevada... Personally, I find any site assuming that their terms of service is enforceable to be shaky because EULA law is also traditionally shaky. Disclaimer: I am not a lawyer.