It then went on to explain that, in situations where a website owner wishes to bind a user to the terms in a browsewrap agreement, “the validity of the browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract” and that, in turn, “depends on the design and content of the website and the agreement’s webpage.”
The author of the client alert, Dana Finberg, thinks that the implicit lesson of the decision may be that “browsewrap” TOU agreements may have to adopt many of the features of “clickwrap” TOU agreements (where the customer actually has to give affirmative consent to having read and agreed to the terms by “clicking” a “I Agree” button or via a similar process), “at least as to individual consumers using commercial websites.”
Obviously, using a “clickwrap” process, whereby all visitors to a bank’s website, before they can use it, must affirmatively consent that they agree to the website’s TOU, is the legally safest method of ensuring enforceability. It’s also a process designed to discourage customers and potential customers from using the website, which is why most banks and other businesses don’t use it (see, as only one example, Chase Bank’s website’s homepage, where the TOU is buried at the bottom of the page and not even highlighted).
A middle ground might be to draw the reader’s attention to the TOU by other means, such as content that explicitly states that the use of the website is subject to the TOU and that draws the reader’s attention through size, color, and/or other variations from the other content. At the very least, the business must consider the risks of using browsewrap rather than clickwrap agreements for its TOU, and consider the impact of those risks on the content of the TOU. For example, should binding arbitration provisions ever be contained solely in a TOU that is presented to a consumer solely as a “browsewrap” agreement? What other processes might make sense to ensure the enforceability of such critical terms? Should separate processes be used with respect to agreements with web site users who are not customers and web site users who are customers?
Are we having fun yet?