Facts of the case
The TOU on the website were accessible through underlined, green hyperlinks located in the bottom corner of each page of the website. The hyperlinks were located beside other legal notices and near buttons a user had to click on to complete an online purchase. The website operator claimed this gave the user constructive notice of the TOU and the plaintiff continued to use the website after such notice.
The Court of Appeals for the Ninth Circuit sided with the plaintiff. The court reasoned that although the hyperlinks to the TOU were conspicuous on every page of the website, the user was never prompted to agree to them. Even having the hyperlinks located close to other buttons the user must click on, without more, is insufficient to give constructive notice. As a result, the plaintiff did not accept the TOU, did not enter into a binding agreement with the website operator, and therefore arbitration was not required to address plaintiff’s claims.
Remember, you can have the most solid and protective TOU possible, but if they are not enforceable, they do you no good.
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