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By: Timothy Murray, MURRAY, HOGUE AND LANNIS
With the e-commerce explosion, sellers are peddling goods and services over their websites at unprecedented rates. From a contract law perspective, this ought to be a seller’s nirvana: the seller alone establishes the legal terms to govern transactions conducted over its website without any haggling or negotiating, and without any battle of the forms in which a transaction is subject to the buyer’s competing boilerplate.
Note a common problem: it is not enough that the hyperlinked terms themselves explicitly state that the terms govern use of the website. If the website that hyperlinks to the terms fails to alert a reasonable user that the terms govern, there is no reason for a user to visit the terms, and they won’t be enforced.1
A. The hyperlink must be conspicuous. To show that a browsewrap agreement is enforceable, it is essential to prove that the hyperlink was conspicuous on the web page. To assess conspicuousness, courts examine a variety of factors, including size, color, typeface, and placement—and these factors must be viewed in the context of the web page’s overall design.2 That last point is crucial: it is not enough for a hyperlink to be in large font if the web page is chock-full of other hyperlinks in equal or larger font (because if everything is conspicuous, nothing is).
Timothy Murray is the coauthor of the Corbin on Contracts Desk Edition (2017) and the biannual supplements to Corbin on Contracts. He practices law as a partner in Murray, Hogue & Lannis in Pittsburgh, Pennsylvania, where he has represented all manner of clients in business disputes and transactional matters.
RESEARCH PATH: Commercial Transactions > E-Commerce > Internet Business & New Media > Articles > Key Points to Consider when Drafting and Negotiating Certain E-Commerce Contracts
For more information on drafting Internet contracts, see
> INTERNET CONTRACTS
RESEARCH PATH: Commercial Transactions > E-Commerce > Internet Business & New Media > Practice Notes > Key Points to Consider when Drafting and Negotiating Certain E-Commerce Contracts > Internet Contracts