Federal Court Holds ‘Browsewrap’ Agreement Unenforceable

Barnes-Noble-logoIn a decision that raises questions about the legality of “browsewrap” agreements on ecommerce websites, a California court ruled that a browsewrap agreement in the form of a hyperlink to a separate webpage is not enforceable. The decision in the case of Nguyen vs. Barnes & Noble, Inc. found that even though there was a “conspicuous hyperlink” to the website’s terms and conditions in which the website did not require the user to affirmatively agree to the terms, those terms were not enforceable. The case could have significant repercussions for ecommerce websites and highlights the importance of the “clickwrap” agreement, which requires consumers to affirmatively click that they agree before completing an ecommerce transaction.

The case arose out of an online “liquidation sale” of HP TouchPads offered by Barnes & Noble (B&N) through its website. Kevin Khoa Nguyen learned of the sale and purchased two TouchPads through the website, receiving an email confirmation of the successful purchase. Every page of the B&N website included a hyperlink to a separate Terms of Use page. That page included a provision stating that “By visiting any area in the Barnes & Noble.com Site … a User is deemed to have accepted the Terms of Use.” However, at no point in the transaction was Nguyen required to click on the Terms of Use link or in any way affirmatively agree to the Terms of Use in order to complete the transaction.

Read the full article @ infotoday.com

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