Over at the ContractsProf blog, law professor Nancy Kim has a post that wonders whether Google’s terms of service are “illusory” and therefore not binding. Her concern is that the terms of service state that Google can unilaterally amend the terms at any time.
I posted a comment suggesting that the answer to her question is no:
- According to the terms of service, any unilateral amendment by Google would be prospective only;
- As a result, each time a user transmits (let’s say) a search request, that forms a unilateral contract whose terms are fixed as those of the then-current terms of service.
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Signing a business contract:
In a consumer contract the term would probably be unenforceable as an unfair contract term.
You think? A provision much like this was responsible for saving an arbitration clause from invalidation in Lizalde v. Vista Quality Markets, Inc., No. 13-50015 (5th Cir. March 25, 2014) (reversing district court’s denial of employer’s motion to compel arbitration of employee’s claim for on-the-job injury). In that case, the arbitration agreement was terminable by the employer, but it expressly stated that the termination would be prospective only and would not be effective until the employer had given the employee 10 days’ notice. See id. at part I, slip op. at 2.