Browsewrap website terms and conditions enforceable

Major v. McAllister, — S.W.3d —, 2009 WL 4959941 (Mo. App. December 23, 2009)

The Missouri Court of Appeals has issued an opinion that reflects a realistic grasp of how people use the web, and also serves as a definitive nod to self-responsibility. The court refused to accept a website end user’s argument that she should not be bound by the website terms and conditions that were presented to her in the familiar “browsewrap” format.

Click

Ms. Major used a website called ServiceMagic to find some contractors to remodel her home in Springfield, Missouri. Each page she saw during the process had a link to the website terms and conditions. At the point where she submitted her contact information to facilitate the signup process, she was presented with a link to the website’s terms and conditions. We’ve all seen this countless times — the link read, “By submitting you agree to the Terms of Use.”

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 ServiceMagic would have to be brought in Denver, Colorado.

When Major sued ServiceMagic in Missouri state court, ServiceMagic 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.

Major relied heavily on Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002). The court in Specht held that end users of Netscape’s website who downloaded a certain application were not bound by the terms and conditions accompanying that download because the terms were not visible on the screen without scrolling down to see them.

But in this case the court found the terms and conditions (including the forum selection clause) to be enforceable. In contrast to Specht, the ServiceMagic site did give 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.

Click image courtesy Flickr user smemon87 under this Creative Commons license.

3 thoughts on “Browsewrap website terms and conditions enforceable

  1. Chris McGeehan

    Evan:

    Here’s a link to the case:

    http://www.courts.mo.gov/file.jsp?id=36294

    I have no qualms with the contract analysis. I do have issues with the fairness of forum/venue selection clauses in the context of Internet solicitations, although this case doesn’t present a good fact pattern for this issue, since the local vendors should be able to make the plaintiff whole.

  2. Peyton Farquhar

    Notwithstanding the fact that the majority of “shrinkwrap” or “clickwrap” contracts of adhesion have been just a polite way for douchebag software companies to screw over end users, I have to say that I agree with the above referenced court’s opinion.

    Plaintiff had ample opportunity to read the TOS and was notified of the existence of same screen after screen that she had to click through in order to advance to the next screen and yet chose NOT to read them. She screwed herself by simply being lazy.

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