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Sep 01, 2010



It means that there are certain things you cannot contract around or waive. It also means that any contract you form should include a severability clause (which I imagine NCSoft's did).

A severability clause ensures that if one portion of a contract is deemed invalid, then the rest of the contract stands. Absent a severability clause, the entire contract would be considered invalid.

A more interesting question is what happened to the forum selection clause -- the part that says all suits must be brought in Texas. Courts generally enforce these clauses.

Having read the opinion it appears NCSoft did not challenge jurisdiction and has not moved to have the case transferred to Texas.

What would have been interesting is a decision where unconscionability and adhesion came into play, or that rendered click agreements of this type void. The court did not find click agreements to be void, however. Rather, the limitation of liability clause was found inapplicable to the type of case under some of Texas' consumer protection laws.


/agrees with John. I'm planning on assigning this one to my Internet law class -- I enjoyed the court's analysis of the way various claims stacked up against the contract. I have to say that the plantiff's claims seem like a stretch to me, the sort of stretch that MMOG companies no doubt find exasperating. Yet this opinion is only resolving the motion to dismiss, so we're not really at the merits yet. If it doesn't settle, we'll get to see how the court handles the surviving claims.


The Lineage II User Agreement (http://us.ncsoft.com/en/legal/user-agreements/lineage-2-user-agreement.html) does indeed have a severability clause under item 15, "General Provisions." So they got that much right, from a contract-writing perspective.


Writing contracts is one thing. Expecting the courts to forget that the target audience doing all the "click through" agreements is 15 is another.

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