Earlier this month, the U.S. District Court for the Northern District of California held that clear evidence that a consumer could not have completed an online transaction without checking a box accepting the terms and conditions was sufficient to constitute notice and acceptance of the forum selection clause contained within. Moretti v. Hertz Corp., No. 13-2972, 2014 WL 1410432 (N.D. Cal. Apr. 11, 2014).
The plaintiff did not dispute completing the transaction or affirmatively deny clicking to accept the terms and conditions. As a result, the defendants’ motion was granted and the case transferred to Delaware.
Pursuant to California law, a forum selection clause in an adhesion contract requires adequate notice to users of their acceptance of the clause. An adhesion contract is a standard form contract drafted by one party with a stronger bargaining power and signed by the weaker party who, typically, does not have the power to negotiate the terms. An acceptance button immediately followed by a hyperlink to the terms of service is usually sufficient notice as long as the consumer has access to the material terms, even if they are not presented on the same page.
In Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), the court held that terms in an online browsewrap were not enforceable because a customer could click on a button to sign up for a service without notice that the click was indicating assent to unseen terms. Reference to the terms was far below the button the consumer had to click to sign-up.
Contact a website terms and conditions attorney to discuss maximizing the likelihood of enforceability. Always provide clear and conspicuous notice of all terms and privacy practices. Require parties to expressly and unequivocally manifest assent prior to use of the relevant services. If it is not practical to obtain consent prior to accessing the website material, ensure that the terms and conditions are prominently placed on the website so that a user will have reasonable notice of the actual terms and that the website is subject to them.
Website terms and conditions that are only available via an inconspicuous hyperlink in mouseprint are likely unenforceable. If it does not feel like reasonable notice and acceptance, it probably is not.
Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.