At the same time, I accept the respondent's position that only evidence documenting the situation as of the date of filing the motion for certification should be required, since this is the date in relation to which the facts and evidence that establish the prima facie cause of action must be examined.
The dispute between the parties regarding the wording of the choice of law clause
- As it appears from the above, the parties were at odds as to the interpretation of clause 6 of the Terms of Use Agreement and whether it should be viewed as establishing a choice of law clause according to which California law would apply to any dispute between the parties.
An examination of the Terms of Use shows that in each of the Terms, under the heading of the clause that appears in capital letters next to the section number, a short summary and reading of the content of the Clause appears, which is presented as a kind of subheading, in letters smaller than the title of the Clause, but slightly larger than the content of the Clause. This part of the section will be referred to hereinafter: the subheading.
The dispute between the parties lies in the fact that in the subheading of section 6 it is not written that a particular law and place of jurisdiction applies, but it can be understood from it that one of three options of law and place of jurisdiction (California, Ireland or the User's place of residence) may apply, when it is not clear under what circumstances each of these three options will apply, and it can be believed that this is at the user's choice. This is the wording of the subheading:
In the unlikely event we end up in a legal dispute, depending on where you live, you and LinkedIn agree to resolve it in California courts using law, courts using Irish law, or in your local courts using local law.CaliforniaDublin, Ireland
In any event, in the content of the section itself, which is presented in more detail and in slightly smaller letters, it can be clearly understood that the section positively determines when each of these three options may apply, depending on the user's place of residence, so that it is determined that if the user resides in one of the designated countries (designated countries; These countries are defined, in Article 1.1 of the Agreement, to include the countries of the European Union (WE), European Economic Area (EEA) and Switzerland) Certain provisions apply, whereas where the User does not reside in one of these states, it is positively determined that the law of California of the United States shall apply exclusively, and the courts of Santa Clara County in that State shall be competent to adjudicate. This is the wording of the clause, which relates to users who do not reside in designated countries: