Often times, in seeking to enforce a term or condition of an online transaction, such as an arbitration clause, an online vendor will discover that (in the eyes of the law) the consumer never agreed to the transaction’s terms and conditions. As a result, the terms and conditions are not legally enforceable.

Enforceability of an online vendor’s terms and conditions agreement (“T&C Agreement”) will often turn on whether it appears that the consumer has in fact agreed to the terms and conditions. State and federal courts across the country have weighed in on enforceability. Recurring throughout the courts’ decisions is the question of whether the consumer, in completing the online transaction, assented to its terms and conditions. Not surprisingly, courts consistently assert that a consumer cannot assent to terms and conditions that it did not know about or could not have known about through reasonable inquiry. Indicia of assent are therefore critical to enforceability.

Browsewraps vs. Clickwraps

The most compelling indication of assent is assent itself. For this reason, many online vendors rely on the generally enforceable “clickwrap” T&C Agreement. The “clickwrap” not only directs the consumer to the terms and conditions of the transaction, but also requires that the consumer click a box to expressly acknowledge that he has read the terms and conditions before completing the transaction.  The consumer is left hard-pressed to argue that he did not agree to terms and conditions which he expressly affirmed.

Enforceability becomes more elusive, however, when an online vendor implements a “browsewrap” T&C Agreement.  A “browsewrap” merely provides a link to the terms and conditions of the transaction but does not require the consumer to click in acknowledgement of them. Courts generally subject this type of T&C Agreement to greater scrutiny with the question of enforceability often turning on the Agreement’s conspicuity.

Following are some pointers that may help to modify your “browsewrap” T&C Agreement to pass enforceability muster:           

• Do not “bury the lead.” T&C Agreements positioned as front and center of a web page as possible enable the consumer to avoid scrolling through seemingly infinite web text to find them.

• Assent is not up for negotiation. Unequivocal language regarding the consumer’s agreement to the transaction’s terms will convey to the consumer that his or her assent to the terms is a mandatory component of the transaction.

• The aphorism “everything in moderation” does not apply. The following features may help to make hyperlinks to a T&C Agreement abundant and obvious throughout the consumer’s interaction with the website:

• A conspicuous T&C hyperlink, with unique font and vibrant colors that is easily discernible from text featured throughout the remainder of the web page;  

• References to the T&C Agreement throughout the integral stages of the online transaction (e.g., in creating a user account, at checkout);

• Notice at checkout that the transaction is subject to the vendor’s T&C Agreement with a readily available hyperlink to the Agreement for easy access by the consumer.