Contracts Keyed to Knapp
Feldman v. Google, Inc
Feldman (P), a lawyer by profession, bought advertising from Google Inc’s (D) in order to attract potential clients for his practice. Each time an internet user searched and clicked on Google (D) for keywords or “Adwords” purchased by him, he would be charged by Google (D) for each click. Feldman (P) however held the view that he was a victim of “click fraud” which results when competitors or pranksters who are not interested in the services of the advertiser, repeatedly click on the ad. This practice thereby drove up the advertising costs of Feldman (P) and discouraged him from advertising.This made Feldman (P) to file a suit against Google (D) in the federal district court of Pennsylvania on the ground that 20 to 30 percent of the clicks for which he had been charged by Google (D) were related to click fraud and that Google (D) had the capability to track and prevent such fraud.However, apart from seeking to quash the charge against it, Google (D) also moved to have the case transferred to court in California on the premise that a forum selection clause in the Adwords online agreement-which Feldman (P) must have clicked on before he could place his ads through Google (D)-required disputes to be resolved in Santa Clara County, California. Furthermore, Feldman (P) asserted that he had clicked on the online agreement which was preceded by the statement “Carefully read the following terms and conditions. If you agree with these terms, indicate your assent below”. Apart from this, the first few paragraphs of this contract were visible on the computer window that an advertiser had the ability to read the entire contract by scrolling through it.So, consent to the terms listed in the Agreement constitutes a binding agreement with Google (D) and this is stated in the preamble which is visible at first impression. Also available for advertisers who want a hard copy of the contract is a link to the printer-friendly version of the contract. The plaintiff however maintained that he had no notice to the agreement terms and that there was no mutual assent to the agreement. Feldman (P) further argued that because the agreement lacked a definite essential term as to price and as to when the contract was entered into, it was unenforceable. Google’s (D) motion was collectively treated as a motion for summary judgment by the court, which also rendered its opinion as to these cross-motions.
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