Failure to read an enforceable clickwrap agreement will not excuse compliance with its terms Feldman v. Google: P sued D over agreement made for online ads and recovery from fraud clicks; clickwrap agreement included forum selection for disputes to be heard in CA; P says didn’t see it; A bottom of agreement that he was supposed to read before hitting accept Court: there was reasonable notice and mutual assent because it stated for him to read the terms and reasonably prudent person would have known of existence of terms; P hit accept willingly Shrinkwrap Terms Purchaser orders a product. When P receives product, it is wrapped in plastic, contains warning that opening plastic and using product constitutes agreement to the term contained. Purchaser has an opportunity to inspect product and terms, P may return product if unhappy. If don’t return, agree to terms. ProCD (Majority) Rule: When purchaser places order, vendor is the one making the offer by shipping product with terms & conditions included; If vendor states that purchaser accepts offer by retaining product for certain amount of time, purchaser bound by terms if he does not return the product within the time period. Purchasers are not bound until they receive the product and terms, inspect them and decide whether or not to keep the product. Purchaser makes offer and Kleock (Minority) Rule: shrinkwrap terms are proposals for additions to contract governed by UCC § 2-207(2). Purchasers bound when vendor accepts payment. If between consumer and merchant seller, merchant terms not part of contract unless agreed to by customer If between two merchants, terms not part of contract if any of three situations in 2-207(2) apply Defontes v. Dell: P alleges D’s collection of taxes on optional service is wrong; D’s terms say mater should be arbitrated due to terms on hyperlink on website (browsewrap) sent to P after placing order and were shrinkwrapped to product when received Court: Followed ProCD and said K formed when customer received the product; also not reasonably apparent that P could reject terms by returning the product because too many elements ambiguous; Reasonable person would not have understood how to reject by returning the product Browsewrap Terms Different from clickwrap because terms are available on the website, but one is not required to scroll
Failure to read an enforceable clickwrap agreement will not excuse compliance with its terms Feldman v. Google: P sued D over agreement made for online ads and recovery from fraud clicks; clickwrap agreement included forum selection for disputes to be heard in CA; P says didn’t see it; A bottom of agreement that he was supposed to read before hitting accept Court: there was reasonable notice and mutual assent because it stated for him to read the terms and reasonably prudent person would have known of existence of terms; P hit accept willingly Shrinkwrap Terms Purchaser orders a product. When P receives product, it is wrapped in plastic, contains warning that opening plastic and using product constitutes agreement to the term contained. Purchaser has an opportunity to inspect product and terms, P may return product if unhappy. If don’t return, agree to terms. ProCD (Majority) Rule: When purchaser places order, vendor is the one making the offer by shipping product with terms & conditions included; If vendor states that purchaser accepts offer by retaining product for certain amount of time, purchaser bound by terms if he does not return the product within the time period. Purchasers are not bound until they receive the product and terms, inspect them and decide whether or not to keep the product. Kleock (Minority) Rule: Purchaser makes offer and shrinkwrap terms are proposals for additions to contract governed by UCC § 2-207(2). Purchasers bound when vendor accepts payment. If between consumer and merchant seller, merchant terms not part of contract unless agreed to by customer If between two merchants, terms not part of contract if any of three situations in 2-207(2) apply Defontes v. Dell: P alleges D’s collection of taxes on optional service is wrong; D’s terms say mater should be arbitrated due to terms on hyperlink on website (browsewrap) sent to P after placing order and were shrinkwrapped to product when received Court: Followed ProCD and said K formed when customer received the product; also not reasonably apparent that P could reject terms by returning the product because too many elements ambiguous; Reasonable person would not have understood how to reject by returning the product Browsewrap Terms Different from clickwrap because terms are available on the website, but one is not required to scroll
Contracts%20I-Wilmarth%20-%20Fall%202012.docx