Business Law 16th Edition by Jane Mallor,James Barnes ,Arlen Langvardt,Jamie Darin Prenkert,Martin McCrory

تمرين 9

23andMe, Inc., sold its Personal Genome Service ("PGS") product on the Internet. The PGS consists of a DNA saliva collection kit and DNA test results with certain information gleaned from saliva samples that customers submit using the DNA kit. The PGS transaction is structured as a two-step process. First, a customer purchases the DNA kit, which 23andMe ships along with a pre addressed return box. The customer collects the saliva with the kit and returns the collected saliva to 23andMe, which sends the saliva to a certified laboratory for analysis. When the laboratory returns results, 23andMe posts the results online to the customer's personal genome profile and sends an e-mail to the customer notifying him or her that the results are available. The customer must then log on to the profile to access the information.
23andMe's Terms of Service ("TOS") are accessible by a hyperlink at the bottom of its homepage and many, though not all, of its other pages. The webpage upon which a customer purchases a DNA kit is one such page with no reference to the TOS. Thus, the first step of the PGS transaction does not require the customer to view or otherwise agree to the TOS. The second step, however, requires the customer to create an account on the 23andMe site and register the DNA kit. The account creation page requires customers to check a box next to the line, "Yes, I have read and agree to the Terms of Service and Privacy Statement." The TOS and Privacy Statement appear in blue font and are hyperlinks to the full terms. Similarly, during the registration process, customers must view a page with the title "To continue, accept our terms of service" written in large font at the top of the page. The registration page provides a hyperlink to the full TOS next to the line: "When you sign up for 23andMe's service you agree to our Terms of Service. Click here to read our full Terms of Service." Customers must then click a large blue icon that reads, "I ACCEPT THE TERMS OF SERVICE," before finishing the registration process and receiving their DNA information. The TOS state that customers who use 23andMe services have manifested acceptance of the TOS by their conduct, regardless of whether they ever read the TOS. Are PGS customers bound by the TOS? What about customers who purchase the PGS as a gift for another person and that person is the one who collects the saliva sample and sets up his or her own account?