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Hotmail Corporation v. Van$ Money Pie Inc., 47 U.S.P.Q. 2d 1020, 1998 WL 388389 (April 1998, N.D.Cal.)


This is the first case implicitly holding that a clickwrap contract, specifically a "terms of service" e-mail agreement, is valid.


While this case does not contain any real discussion of the enforceability of "clickwrap" agreements, it is the first decision to implicitly uphold the validity of these agreements by finding that the plaintiff was likely to prevail on its claim that the defendant breached a contract - here, the "Terms of Service" to which every user of the plaintiff's e-mail services agreed. The plaintiff, a provider of e-mail services on the Internet, required that subscribers to its service agree to abide by its "Terms of Service" which prohibited using a Hotmail account for the purposes of sending spam and/or pornography. In granting the plaintiff's request for a preliminary injunction, the court held that the evidence supported a finding that plaintiff would likely prevail on its breach of contract claim by demonstrating that the defendants obtained a number of Hotmail mailboxes and access to Hotmail's services, that "in doing so defendants agreed to abide by Hotmail's Terms of Service, and that they breached that agreement by using Hotmail's services to facilitate sending spam and/or pornography."

Copyright SRBC 1998 up