Clickwrap Doesn't Bind Consumer Unless Consumer Did the Clicking

  
[For the record, I am not trying to scoop Nancy on this clickwrap case -- welcome aboard, Nancy!  It was an irresistible case that came my way via BNA.]  Plaintiff Shaun Marso listed an engagement ring for sale; he found a buyer who agreed to pay $12,000 for the ring, plus shipping costs.  Marso went to a Greensboro, North Carolina UPS store and shipped the ring to the buyer, using C.O.D. service.  UPS delivered the ring and took a cashier's check from the buyer.  It turned out that the buyer's cashier check was fraudulent.

Marso sued UPS on the grounds that it "agreed to collect on delivery the sum of $12,145.00," "guaranteed that collection as a matter of contract," "did not collect the sum of $12,145.00," and thus "materially breached its contractual obligation." UPS moved for summary judgment, pointing to its terms of service, which provide:

[a]ll checks or other negotiable instruments (including cashier's checks, official bank checks, money orders and other similar instruments) tendered in payment of C.O.D.s will be accepted by UPS based solely upon the shipper assuming all risk relating thereto including, but not limited to, risk of non-payment, insufficient funds, and forgery, and UPS shall not be liable upon any such instrument....

UPS' witness averred that terms are presented in a clickwrap agreement on a computer that the customer must use before the shipping label may be printed to send the package.  Once a customer prints out the shipping label, he or she brings the package to a counter for a UPS employee to scan the bar code on the shipping label.

In an affidavit, Marso averred that he never agreed to the clickwrap and never used a computer to print out his shipping label: 

plaintiff "categorically den[ies]" that he used a computer "in any way, shape, or form" when he visited the UPS Customer Center in Goldsboro. Instead, plaintiff asserts that defendant's employee entered the information into the computer, and that "[n]o one advised [plaintiff], orally or in writing, about any UPS Tariff, waybill, or service guide," or advised him that he could request a copy of the same. Plaintiff asserts that defendant's employee at the UPS Customer Center "assured [him] that UPS would collect cash from the purchaser," that "the collection was guaranteed," and that plaintiff "would be getting a check from UPS, not from the purchaser." In other words, plaintiff suggests by his argument that he did not assent to the terms of service identified in the UPS Tariff, which would limit defendant's liability for the fraudulent cashier's check collected by defendant upon delivery of plaintiff's package to Mr. Thompson, and instead asserts that he formed an oral contract with defendant's employee which obligated defendant to be liable to plaintiff for $12,145.00 without limitation. Thus, there appears to be a genuine issue as to whether plaintiff assented to be bound by the limiting terms of the UPS Tariff, and whether defendant presented plaintiff with actual or constructive notice of the terms set forth by the UPS Tariff. 

Therefore, the North Carolina Court of Appeals held that summary judgment was inappropriate.  The parties presented conflicting evidence "regarding the attendant circumstances of the formation and terms of the agreed-upon contract, including whether plaintiff had either actual or constructive notice that he would be bound by the terms."

Marso v. UPS, Inc. (Sept. 20, 2011 N.C. Ct. Appeals)

[Meredith R. Miller]