ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Sunday, February 26, 2017

Terms and Conditions Hyperlink at Bottom of Page Not Conspicuous Enough to Be Binding on Users

We have blogged about arbitration clauses in contracts lots of times before, including in the Internet context, and including in the diet pill context. Now a recent case out of Florida, Vitacost.com, Inc. v. McCants, No. 4D16-3384, adds to the pile, in the Internet diet pill context. In this case, McCants sued Vitacost, from which he purchased dietary supplements that he alleged seriously damaged his liver. In response, Vitacost sought to compel arbitration based on the arbitration clause in the terms and conditions on its website. In Florida, the enforceability of Vitacost's "browsewrap" terms and conditions was a matter of first impression. 

Vitacost claimed that the hyperlink to its terms and conditions was located at the bottom of every page of its website and that that was sufficient to put McCants on notice of them. However, the court noted that the constant positioning of the hyperlink at the bottom of the page required every user to have to scroll to the bottom of the page to notice the terms and conditions. Even upon buying something and "checking out," the hyperlink remained positioned toward the bottom of the page. McCants alleged that he had not seen the terms and conditions, and the court found that the hyperlink's location was not conspicuous enough to put McCants on notice. 

http://lawprofessors.typepad.com/contractsprof_blog/2017/02/terms-and-conditions-hyperlink-at-bottom-of-page-not-conspicuous-enough-to-be-binding-on-users.html

E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink

Comments

Great find and a well-written case, Stacey. I may have to use this one in class!

Posted by: Mark Edwin Burge | Feb 26, 2017 7:28:34 PM

Thanks! I am fascinated by how we're still debating this stuff!

Posted by: Stacey | Mar 3, 2017 9:02:06 AM

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