August 27, 2005
Illinois Appeals Court Enforces “Browse-Wrap Agreement”
An Illinois appeals court held that buyers who purchased computers over the Internet were bound to an arbitration clause contained in the "Terms and Conditions of Sale,” even though the buyers were not required to click on an “I agree” button specific to those terms of sale.
The computer purchasers brought an action against the computer manufacturer, Dell, claiming that it falsely advertised the Pentium 4 microprocessor was the fastest chip available. Dell moved to compel arbitration; the trial court denied the motion. Dell appealed, and the appellate court reversed.
The buyers had purchased the computers on Dell’s web site, which contained five pages of forms the buyers had to fill out to make the purchase. Each of these five pages contained a blue hyperlink to the “Terms and Conditions of Sale.” The “Terms and Conditions of Sale” included an arbitration clause. The “Terms and Conditions of Sale” were also included on the printed invoice that came with the computer.
Dell argued that the blue hyperlink to the “Terms and Conditions of Sale” was sufficient to make the purchasers aware they were agreeing to the arbitration clause. The purchasers argued, however, that Dell should have displayed on its order-confirmation web page an "I accept" box, on which the purchasers must click to manifest assent to the agreement before the purchase proceeded.
The appellate court held that the terms were conspicuous enough that the purchasers should have known what they were agreeing to:
The blue hyperlink entitled "Terms and Conditions of Sale" appeared on numerous Web pages the plaintiffs completed in the ordering process. The blue hyperlinks for the "Terms and Conditions of Sale" also appeared on the defendant's marketing Web pages, copies of which the plaintiffs attached to their complaint. The blue hyperlinks on the defendant's Web pages, constituting the five-step process for ordering the computers, should be treated the same as a multipage written paper contract. The blue hyperlink simply takes a person to another page of the contract, similar to turning the page of a written paper contract. Although there is no conspicuousness requirement, the hyperlink's contrasting blue type makes it conspicuous. Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices when using computers. A person using a computer quickly learns that more information is available by clicking on a blue hyperlink.
Hubbert v. Dell Corp., 2005 Ill. App. LEXIS 808 (Aug. 12, 2005).
[Meredith R. Miller]
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