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 When a benefit is offered subject to stated conditions, and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding on the offeree. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004). The rule is given in the Second Restatement of Contracts as follows: '(1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance . . . (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.' Restatement (Second) of Contracts § 69 (1981). A comment explains that 'The resulting duty is not merely a duty to pay fair value, but a duty to . . . perform according to the terms of the offer.' Id. cmt. b.


In the case of National City Golf Finance v. Higher Ground Country Club Management Co., LLC, 641 F. Supp. 2d 196 (S.D.N.Y. 2009), the issue was whether the parties agreed to arbitrate disputes arising out of a series ...

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