An attorney fee provision in a browsewrap license agreement between commercial parties is unenforceable under Ohio law, even though a jury found that the agreement had been breached, because the attorney fee provision was not the product of "free and understanding negotiation," a district court ruled. The court noted that the agreement was accessible by following a hyperlink that was displayed each time a user accessed the licensed database. The court also noted that the provision benefitted only the licensor, because it provided for an award of attorney fees only when the licensor sought to protect its rights. Enforcement of the fee provision would be against Ohio public policy regarding attorney fee provisions, the court concluded, because the agreement in which it was contained "did not require users to manifest their acceptance of--or even to view--the clause" in order to access the licensed database.
Snap-On Business Solutions, Inc. v. O'Neil & Associates, Inc., 2010 U.S. Dist. LEXIS 81502 (N.D. Ohio July 7, 2010) Download PDF