Substantive Unconscionability Sample Clauses

Substantive Unconscionability. The second prong in unconscionability analysis is substantive unconscionability, which focuses on overly harsh or one-sided results.102 Courts may focus on one term or terms in the aggregate to find substantive unconscionability. The Xxxxx court focused on four factors in finding the arbi- tration provision at issue substantively unconscionable: lack of mutuality, cost of arbitration, the forum selection clause, and the 99. See Xxxx Xxxxxx Xxxxxxxx, Inc. v. Superior Court, 000 Xxx. App. 3d 758 (Cal. Ct. App. 1989) (finding contract not unconscionable as contract of adhesion where other institutions offered differing terms). But see Xxxxxxx v. New Cingular Wireless Servs., Inc., 498 F.3d 976, 985 (9th Cir. 2007) (“Although there is clearly some disagreement among the California Courts of Appeal over this issue . . . we have consistently followed the courts that reject the notion that the existence of ‘marketplace alternatives’ bars a finding of procedural unconscionability. . . . ‘[A]bsent unusual circumstances, use of a contract of adhesion establishes a minimal degree of procedural unconscionability notwithstanding the availability of market alternatives. ’”) (quoting Gatton v. T-Mobile USA, Inc., 152 Cal. App. 4th 571, 585 (Cal. Ct. App. 2007)). 100. See Xxxxx, 487 F. Supp. 2d at 606 (“Although it is not the only virtual world on the Internet, Second Life was the first and only virtual world to specifically grant its participants property rights in virtual land.”).
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Substantive Unconscionability is the resulting unfair contract; whether the terms are harsh, unfair or unduly favorable to one of the parties Most courts generally require that both elements be met to find a contract unconscionable (contracts of adhesion can help the court establish unconscionability) Remedies: a court can refuse an unconscionable contract either in its entirety or in part. If the contract is refused in entirety the parties must restore any performance received (unjust enrichment) (pages 710-718 in casebook)
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Substantive Unconscionability a. Related to the terms of the resulting contract, focusing on whether, as a result of behaving in a procedurally unconscionable way, one of the parties was able to impose an unfair contract or term of the other.
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Related to Substantive Unconscionability

  • Interpretation; Severability (a) The Executive has carefully considered the possible effects on the Executive of the covenants not to compete, the confidentiality provisions and the other obligations contained in this Agreement, and the Executive recognizes that the Company has made every effort to limit the restrictions placed upon the Executive to those that are reasonable and necessary to protect the Company’s legitimate business interests.

  • Severability; Interpretation If any provision of this Agreement is held invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors. Where the effect of a requirement of the 1940 Act reflected in any provision of this Agreement is altered by a rule, regulation or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order.

  • INTERPRETATION; VENUE This Agreement shall be interpreted as a whole unit, and section headings are for convenience only. All interpretations shall be governed by the laws of the State of Florida. In the event it is necessary for either party to initiate legal action regarding this Agreement, venue shall be in the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida, for claims under state law, and in the Southern District of Florida for claims justiciable in federal court. * * *

  • Interpretation and Severability If any provision of this Agreement is held to be unlawful, invalid, or unenforceable under present or future laws effective during the terms hereof, such provisions shall be fully severable and this Agreement shall be construed and enforced as if such unlawful, invalid, or unenforceable provision was not a part of this Agreement. Furthermore, if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which rends it valid.

  • Severability and Interpretation If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended.

  • Geographic Scope, Governing Law & Venue This Agreement will be governed by and construed in accordance with the laws of the country of the Customer Business Address without regard to any contrary conflicts of law principles and excluding the United Nations Convention for the International Sale of Goods. All legal actions arising under this Agreement will be initiated and maintained in the state or the court of Vienna, Austria (Inner-City). Both parties hereby irrevocably consent to such jurisdiction and venue.

  • Governing Law; Interpretation This Agreement shall be interpreted and enforced under the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles. In the event of any dispute, this Agreement is intended by the parties to be construed as a whole, to be interpreted in accordance with its fair meaning, and not to be construed strictly for or against either you or the Company or the “drafter” of all or any portion of this Agreement.

  • Invalidity or Unenforceability of Any Provision The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement and any invalid or unenforceable provision will be deemed to be severed.

  • Unenforceability The fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations.

  • Headings; Interpretation All headings are for reference purposes only and do not affect the interpretation of this Agreement. The word “including” means “including, without limitation.” Unless specifically stated to the contrary, all references to days herein shall be deemed to refer to calendar days.

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