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COMM 393 (60)

Case Briefs – Rudder v. Microsoft Corp. - Offer and Acceptance.docx

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University of British Columbia
COMM 393
Patricia Mallia

Case Briefs – Rudder v. Microsoft Corp. Facts: - Microsoft Network (MSN) is an online service, providing, interalia, information and services including Internet access to its members - Service is provided to members around the world from a “gateway” located in Washington State - Proposed representative plaintiffs were subscriber members of MSN and law school graduates - Potential Members of MSN are required to electronically execute a “Member Agreement” prior to receiving services provided by the company. - Each Agreement contains this provision: “This Agreement is governed by the laws of the State of Washington, U.S.A., and you consent to the exclusive jurisdiction and venue of courts in King County, Washington, in all disputes arising out of or relating to your use of MSN or your MSN Membership” - Member Agreement is provided to potential members in a computer readable form through either individual computer disks or via the Internet at the MSN website - Rudder received a computer disk as part of a promotion by MSN and Member Agreement was readily viewable - Once Rudder found the provisions relating to costs, he did not read the rest of the Agreement - Plaintiffs argue the clause should be treated as if it were the fine print in a contract, which must be brought specifically to the attention of the party accepting the terms - Microsoft has charged members of MSN and taken payment from their credit cards in breach of contract and that Microsoft has failed to provide reasonable or accurate information concerning accounts Issues: 1) Member Agreement contains that any litigation between parties is exclusive to the jurisdiction, and venue, of the courts in King County in State of Washington – Is the Forum Selection Clause relevant in this case? 2) Is Ontario is not the appropriate forum for the conduct of this proceeding? Should the forum selection clause be override? Reasons: LAW: Sarabia v. Oceanic Mindoro (1996): “Since forum selection cl
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