Abstract
Export compliance is becoming increasingly important for parties required to abide by U.S. law, including many online sellers of consumer products. These retailers’ contractual terms with their customers set forth a number of provisions governing the relationship between them, including those which deal with arbitration, indemnification, disclaimer of warranties, and other issues. Many such agreements also purport to create obligations on the part of the consumer as to export control and sanctions compliance relative to the products they purchase. These contract provisions attempt to do so, however, in often markedly different ways, and with language that may leave notable gaps in the breadth of restrictions purportedly created. For example, some such provisions focus primarily on the export of software, even in the case of retailers of physical goods. Some provisions only contain prohibitions against unauthorized exports and leave unaddressed the issue of sanctions compliance. Other versions are far more detailed and specifically prohibit unauthorized transshipments and re-exports, along with other types of prohibited exports. This Article analyzes the extent to which agreements between online retailers and consumers actually achieve reduced regulatory risk for the companies who use them. First, it compares how these provisions differ among a sample of retailers’ terms of use, and the effect these different provisions have on retailers’ contractual relationships with their customers. The Article also examines the intersection between the private law contractual relationship between retailers and consumers and the public law export controls and sanctions measures to which retailers are subject. Retailers may use these contractual terms to attempt to shield themselves from compliance risk, but the terms at issue are often incomplete and in any case are unlikely to be actually read or understood by consumers. In some cases, they may not even become part of a binding contract between the consumer and the company. This Article suggests more effective ways of drafting these contractual terms, but ultimately concludes that other compliance measures such as IP address monitoring are far more likely to provide a meaningful reduction in compliance risk for retailers.
Recommended Citation
Christine Abely,
Contracting for Consumer Trade Compliance,
130
Dick. L. Rev.
1
(2025).
Available at:
https://insight.dickinsonlaw.psu.edu/dlr/vol130/iss1/2