I taught Carnival Cruise Lines v. Shute today. So the issue of form contracts was particularly salient when I read the form contract for Pollhost.com, a site that provides polls for blogs. The contract is tightly drafted, with a number of clauses that vary what you’d normally think of as the default law. For example:
Pollhost’s failure at any time to enforce any provision of these terms of service shall not constitute a waiver or limitation of Pollhost’s right subsequently to enforce every provision of the terms of service.
Pollhost shall have the sole discretion as to what what constitutes a violation of any of these terms.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF SERVICE OR OTHERWISE, POLLHOST SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, PROCUREMENT OF SUBSTITUTE GOODS, GOODWILL, DATA, OR OTHER LOSSES (EVEN IF POLLHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE.
What do you think, is this form contract enforceable? Take the poll!