Contract terms and purchaser assent to those terms, conditions, intended use and warning information provided with a purchased product are known fertile ground for defending product claims.
In today’s virtual age, consumers turn to the internet to purchase products, particularly during the holiday season. In this post, we examine the enforceability of online contracts and corresponding reliance upon virtually provided product documentation.
Decisions by courts reviewing the enforceability of these agreements demonstrate that the primary consideration is whether users had notice of the terms and actually agreed to be bound by them. One way to ensure these criteria are met is to have users actually click to assent to the terms. Hence, courts have treated clickwrap agreements more favorably than browsewrap agreements.
In light of courts’ clear trend of upholding clickwrap-style agreements (while disfavoring browsewrap agreements), manufacturers and sellers can take certain steps to improve their chances of having their web-based agreements enforced and consumer acceptance of product related information upheld.
- Closely review your websites to determine whether your agreements more closely resemble clickwrap or browsewrap agreements. Manufacturers/distributors/sellers may want to consider replacing browsewrap or browsewrap-style agreements with agreements that require visitors to explicitly accept the terms and conditions and/or product related materials before they can proceed with using the website or placing orders through the website.
- Agreements and terms of those agreements should be easily accessible and conspicuous to users (i.e., not buried under other language or other features of the website). One way of accomplishing this is by including text linking to those terms in bold text that is in a different color, font, or format from the surrounding language.
- Consider including language explicitly stating that the terms apply to the use of the website and any orders placed through it. Placement of a separate button that users can click or a box to check in close proximity to the terms before a user can proceed with making a purchase or registering an account is prudent as well. Requiring users to affirmatively indicate their assent in this manner is critical to establishing that they had notice of and agreed to be bound.
- Finally, keep internal records reflecting users’ acceptance of information and assent to agreement terms. This will serve as clear evidence that users have agreed to the website’s terms.
By following these guidelines, manufacturers and sellers can place themselves in a stronger position to successfully enforce the terms and conditions on their websites in court, and hold consumers accountable for having received, reviewed and accepted the warnings and product related information so diligently provided.