The Ninth Circuit’s analysis of the issue makes clear that district courts should be reluctant to enforce browsewrap agreements against individual consumers in the absence of evidence that the website owners took steps to make sure that users became aware of the terms being enforced against them. The court placed the burden on website owners to give users notice of the site’s terms and conditions, especially if the users are individual consumers.    Thus, website owners should ensure that users of their site are at least given explicit notice of such terms, or better still, required to affirmatively click a button or check a box indicating agreement to the terms. As we previously wrote, websites must implement such terms properly to ensure that they are enforceable.
But what specifically constitutes such acceptance, and what steps should website operators take to memorialize and maintain the resulting contract? Moreover, even website terms presented through a “conspicuous” link may not be enforceable if users are not required to affirmatively accept them. If they fit on a single page, that is helpful, but an easy-to-use scroll box can work as well. This reasoning, however, does not necessarily mean that an implementation like the one at issue in Fteja will always will result in an enforceable contract. This leaves room to argue for a different outcome when a website operator should expect that novice computer users will be among its visitors. These cases illustrate how important it is to expressly connect users’ affirmative actions to the terms of use.
Bookacoach is an online marketplace that connects parents and athletes with qualified sports coaches.
PactSafe is a web application to track, manage and increase the enforceability of website legal agreements. YC Bioelectric is pioneering an analytical device to simultaneously detect and analyze proteins. Companies interested in exhibiting at the 2014 Innovation Showcase have until midnight on May 18th to do so.
This actionable course will walk you through how to increase your output, add more value to your customers, and double your overall business valuation over the next 30 days. While forum selection bylaws have become increasingly popular with US public companies, courts in Delaware and Oregon recently came to opposite conclusions on whether such bylaws, when unilaterally adopted by a board of directors concurrently with the approval of a merger transaction, should be enforced.
Website operators often take for granted the enforceability of their websites’ terms of service. Many website operators, particularly Internet retailers and operators of ecommerce sites, use “clickwrap” (or “clickthrough”) agreements to govern use of their sites.
The enforceability of browsewrap terms of use has been held to depend on whether a website user has knowledge—either actual or constructive—of the applicable terms, because users cannot agree to be bound by terms unless they know what those terms are. The court ultimately held that the arbitration clause was not enforceable because the terms of use agreement itself was not enforceable. In light of Nguyen and the other cases discussed above, website operators should consider using clickwraps that require affirmative acceptance where possible, rather than relying on browsewraps to enforce their terms of use. About Socially AwareSocial media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. The views expressed herein shall not be attributed to Morrison & Foerster, its attorneys or its clients.

While failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract … the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers. Specifically, users must be required to manifest acceptance of the terms in a manner that results in an enforceable contract. The simple way to avoid that (perhaps far-fetched) argument is to expressly identify the hyperlink as a means to read the contract terms. In particular, the checkbox or button and accompanying text should clearly indicate that the user’s click signifies acceptance of the website terms. With clickwrap agreements, the website operator typically presents its standard terms of use and then requires the user to click an “Accept” or “I Agree” button.
That is, they are contracts that are offered on a “take it or leave it” basis with no opportunity for negotiation. Courts considering browsewrap enforceability issues often grapple with the question of whether the defendant was given notice of the applicable terms sufficient to impute such knowledge. A simple click can be the difference between an agreement’s being found enforceable or not. Many social media sites—for example, Pinterest, Twitter, and YouTube—allow users to access at least some content and functionality without registering. Here at Morrison & Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media.
Our clients include some of the largest financial institutions, investment banks, Fortune 100, technology and life science companies.
Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound. A few weeks later, in September, a Delaware court found a similar bylaw enforceable and dismissed the plaintiff's complaint. By clicking the button, users affirmatively manifest their intent to be bound by the terms. A user who does not wish to be bound by the proffered terms can click “Do Not Accept” or, for a browsewrap, simply leave the website. In Nguyen, the plaintiff’s claims arose from a Barnes & Noble promotion that offered computer tablets at a discounted price.
Due to this lack of adequate notice, Nguyen did not know and, in Tucker’s view, should not necessarily have known of Barnes & Noble’s terms of use. For ecommerce sites or any site that requires registration prior to use, clickwraps are relatively easy to implement—for example, at the point of purchase or when the user registers—without negatively affecting the user experience.
With sites such as these, there may be no real opportunity to obtain affirmative acceptance of terms of use without degrading the user experience, so a clickwrap is simply not a practical option.
As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. We’ve been included on The American Lawyer’s A-List for 12 straight years, Chambers Global named MoFo its 2013 USA Law Firm of the Year, and Chambers USA named the firm both its 2013 Intellectual Property and Bankruptcy Firm of the Year. The information herein is not intended to create an attorney-client or similar relationship.

This split among the courts highlights that even though there is increasing consensus that unilaterally approved forum selection bylaws are facially valid, courts may scrutinize the particular circumstances under which such bylaws are adopted. Other website operators use “browsewrap” agreements—terms of agreement that are usually accessible through a hyperlink at the bottom of a web page.
On the other hand, a user who is willing to be bound can indicate such assent by clicking “I Accept” or by continuing to browse the website. Although Nguyen submitted an order to purchase a tablet at the promotional price, Barnes & Noble canceled his order the next day, citing an oversale of its tablet inventory.
Best practices for clickwraps include presenting terms of service before payment, allowing for easy reading of all terms, allowing users to print or save a copy of the terms, offering a prominent option to decline the terms, providing an easy way for users to find the terms on the site at any time after payment or registration, and giving users notice of (and requiring users to accept) any updates and changes to the terms of use. For operators of such websites, the most important lesson of Nguyen and the other cases discussed above is that the question of enforceability often turns on whether the user has sufficient notice of the terms of use.
In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison & Foerster publishes this blog devoted to the law and business of social media. Although, as a practical matter, few people actually read them, browsewraps are also widely used. Reasonable people may disagree regarding whether these actions truly manifest a user’s assent to be bound by the relevant contract terms, but courts have frequently upheld the enforceability of both clickwrap and browsewrap terms of use (subject, of course, to the unconscionability concerns raised by any contract of adhesion). As a result, Nguyen alleged that he was “forced to rely on substitute tablet technology, which he subsequently purchased .
Thus, website operators can increase the likelihood that their terms of use will be enforced if links to such terms are prominently displayed, preferably “above the fold” so that a user will be able to see the link without scrolling down the page. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.
Whether you need legal services and which lawyer or law firm you select are important decisions that should not be based on this website alone. As discussed in the remainder of this article, however, browsewrap terms of use often encounter a greater degree of scrutiny from courts due to the lack of any affirmative acceptance by users.
As Nguyen and the other cases illustrate, an operator who places links to terms of use in a tiny font buried at the bottom of a page may be in for an unpleasant surprise if those terms ever need to be enforced. But, three years later, the same court (in the same case, no less) ruled that more prominent notice on the site’s home page was adequate notice. Barnes & Noble then moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. While a court’s determination of sufficient notice may vary in each case, it is clear that the more readily available and conspicuous browsewrap terms of use are, the more likely it is that a court will find that the user knew of, and was bound by, the terms. The question before the court was whether, given the existing facts, the arbitration clause was enforceable against Nguyen.

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