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enforcing electronic contracts
September 5, 2017
enforcing electronic contracts
    There's not much use going to the expense and trouble of getting proper contracts if you're going to lose sleep over whether they will be enforced.  The concern is heightened when the contracts are executed and retained electronically.  If you use the Standard Form Agreements[updated] then you know that one of the features is the arbitration provision, the agreement to arbitrate.  That provision is getting more and more attention from the courts because the United States Supreme Court held that the federal law sanctioning arbitration preempted state laws that prohibited arbitration.  The Court also reiterated the federal statute that clearly states that consensual dispute resolution procedures were preferred over court actions and therefore should be enforced by courts.  So challenges are common when arbitration proceedings are commenced and more and more cases are being decided enforcing the arbitration clause.  

    A recent case decided by the Second Circuit Court of Appeals [federal court in New York] enforced an arbitration provision in a consumer against Uber.  You can read the decision on our website under New York Leading cases, Meyer v. Uber Technologies.
    Here's why I am discussing the case today.  In the Uber case the consumer signed up for the Uber service by clicking his way through an App on his phone.  Electronic contract.  The court discussed that an arbitration clause will not be enforced unless the provision was conspicuous.  This is the same criteria courts will look to when asked to enforce the Exculpatory clauseIndemnity clauseinsurance procurement - allocation of risk clause and limitation of liability clause.  Therefore, the discussion in this case, while limited to the arbitration clause, should have wide implication when looking to enforce the various protective provisions in the alarm contract.
    I am not going to selects parts of the decision.  I think you should read the case.  You'll like it because it looks favorably on enforcing the electronic contracts, even when extra scrutiny is required for specific types of provisions.  Go to Leading Cases, New York, and its under Meyer v Uber Technologies
    If you are going to convert the Standard Form Agreements for electronic use you should use the Disclosure and Consent to Electronic Communication, especially if the end user is a consumer - residential contracts.  You should also err on the prudent side by using a few more click throughs.  I'm not particularly comfortable with one click for "I agree to the Terms and Conditions of Service".    I suggest click through at all the provisions that you know are essential for your protection.
    Electronic contract or paper contract.  Either way you should be starting with a proper contract.  You get that here:  Contract forms are continuously updated and there is no reason to wait until 2018; these forms already have the updates so your copyright will be September 2017.  Remember our policy is free updates for 6 months, half price within one year.  The longer you wait to update your contracts the more subscribers you are going to have signing outdated contracts.  That is going to affect your bottom line eventually.  Why?  Because updated contracts are worth more and buyers will pay more.  Simple as that.
    Call our Contract Administrator Eileen Wagda at 516 747 6700 x 312 or if you need assistance figuring out which contracts best suit your needs.  Focus on the All in One agreements.


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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700