“Browsewrapped” Terms and Conditions May be Binding on Internet Users

Posted on January 12, 2010

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Internet users beware when blindly agreeing to Terms of Use on an Internet website. You may be assenting to terms that affect your legal rights without ever reading them.

In the case of Major v. McAllister, 2009 WL 4959941 (Mo. App. December 23, 2009), the Missouri Court of Appeals issued an opinion that addresses website terms and conditions presented to Internet users in “browsewrap” format.

Ms. Major used a website called Service Magic to locate contractors to remodel her home in Springfield, Missouri. Each website page had a link to the website terms and conditions. Prior to submitting her contact information during the sign-up process, she was presented with a link to the website’s terms and conditions. The link read, “By submitting you agree to the Terms of Use.” Ms. Major admitted she never clicked on the link and therefore never read the terms and conditions. But, had she clicked through, she would have read a forum selection clause providing that all suits against Service Magic would have to be brought in Denver, Colorado. When Major sued Service Magic in Missouri state court, Service Magic moved to dismiss, citing the forum selection clause. The trial court granted the motion and Major sought review. On appeal, the court affirmed the dismissal.

The Missouri Court of Appeals held that the terms and conditions of the agreement are enforceable because the Service Magic site gave immediately visible notice of the existence of the terms of the agreement. Even though one would have to click through to read the terms, the presence of the link was sufficient to place the website user on reasonable notice of the terms, and subsequent use by the end user manifested assent to those terms.

It is possible that other jurisdictions may come to the same conclusion regarding these Terms of Use on Internet websites. As such, we recommend that Internet users read all terms and conditions prior to submitting a form on the Internet in order to ascertain the consequences of assenting to the terms for the particular user.

Elizabeth Ritter

Goodrich Law Firm, LLC

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