Written by Keenan W. Ng
Plaintiff argued because he did not view the browsewrap agreement, he should not be held to it. The court noted that browsewrap agreements are enforced where the user has actual notice of the agreement. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 401- 404 (2d Cir. 2004). In situations where the user does not have knowledge of the agreement, the validity of the browsewrap agreement turns on whether the website places a reasonably prudent user on inquiry notice of the terms of the contract. Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 30-31 (2d Cir. 2002). Inquiry notice depends on the design and content of the website and the agreement’s webpage. Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL5568706, at *6 (N.D. Cal. Oct. 9, 2013). That the agreement was an arbitration agreement was not relevant to the Court’s analysis.
In summary, as a website owner, if you wish to bind your users to your use of terms, we suggest ensuring your users affirmatively acknowledge acceptance of your terms by using a clickwrap agreement.
Ad Astra Law Group, LLP