Make Sure Your Online Terms and Conditions Are Enforceable

Make Sure Your Online Terms and Conditions Are Enforceable

It’s becoming more and more common to see terms and conditions on websites, by which the website intends to bind purchasers or even just users to certain terms and conditions. The California Court of Appeals recently adjudicated a case over such terms and conditions, and the case has good guidance for all businesses operating on the web.

The plaintiff in this case ordered “completely assembled” flowers from, but rather than being completely assembled, he received a “do-it-yourself kit in a box.” He sued ProFlowers on a class action basis, and ProFlowers moved to compel arbitration according to the site’s Term of Use – which the Court found were not sufficiently conspicuous.

The plaintiff contended that ProFlowers never asked him to affirmatively assent to the website terms as a condition of completing the order. Moreover, although the terms of use were technically on the page, the hyperlink was lime green text on a lime green background — hardly “sufficiently conspicuous” in the eyes of the Court. It was the same story with the confirmation email which contained the links “Privacy Policy” and “Terms of Use” in the same lime-green-on-lime-green format. The Court held that ProFlower’s hyperlinks were not “sufficiently conspicuous” enough to put a “reasonably prudent internet consumer” on inquiry notice that he or she was about to be bound by contract terms. The opinion suggested that even a conspicuous hyperlink to the website’s Terms of Use might not be enough to guarantee that the users were given sufficiently reasonable notice. And without notice there is no assent to the terms.

The lesson is whenever you are putting forth terms and conditions, whether on a webpage or an invoice, you have to ensure that other party affirmatively consents to those terms through a handwritten or electronic signature, or by actively ‘clicking’ on an icon stating that the party consents to the terms.

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