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Sunday, December 13, 2009

By Doing Business Online Are You Waiving Your Rights?

Here is yet another example of how things are changing for the process serving profession… Did you know that when you use many e-commerce websites these days that you have waived your right to service of process by traditional means?

How many of you have actually read those Terms and Conditions before you checked the little square box? Me either, recently I was curious or and actually read the Terms and Conditions on two websites. Below are two examples of what I found in those Terms & Conditions.

“Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notice to it under this waiver and agrees that such service shall constitute good and sufficient service of process and notice thereof.”

Here is another common waiver

"By visiting the Site, you agree that the laws of the State of New York, without regard to principles of conflicts of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and BrainPOP. Any dispute relating in any way to your visit to the Site or to the Content, products or services sold or distributed by BrainPOP or through BrainPOP shall be solely adjudicated in Supreme Court of the State of New York or in the U.S. Federal District Court located in New York County, New York, and you consent and submit to exclusive jurisdiction and venue in such courts and agree to accept service of process by electronic mail."

It is one thing to knowingly waive ones rights to jurisdiction and service of process, it is entirely another when we all know no one reads the terms and conditions online. We just go about our business and check that little box and hit continue without ever knowing we have waived our rights.

The waiver of service and electronic service are challenges to our livelihoods that we start thinking about and talking about. Until we understand the challenge before us, we are not likely to take any action that protects primary/traditional service of process. The type of action that needs to take place should inform and educate process servers as well as the bench, bar and public if it is hopes to be successful. Most importantly, that action needs to enable process servers to retain the vital role they perform today.

Some would have you believe that my desire to inform, educate and encourage an open and robust discussion on the topic of electronic service of process and the erosion of our profession is somehow nefarious. Nothing could be farther from the truth.

Do not be lead astray by those that are ignorant or afraid of change. Do not let their belief that the process serving profession does not need to evolve, stop you from finding a way to remain relevant.