Click-Throughs – The Limits of Enforceability
Under the facts of the case, the arbitration clause was placed at the back-end of a ten page agreement and was not displayed for the customer to view. Only the first lines of the agreement were visible from a box on the website. There was no mention of the agreement on the webpage nor was there any notice to the customer that they would be bound by such terms upon the purchase of the credit report. The court ruled that in order for the terms to be enforceable, there has to be some evidence that the customer had notice of the terms and expressly agreed to them by purchasing the product or service. In the case of a click through, the concepts of notice and evidence of consent are especially important as it amounts to a unilateral agreement under which there is no customer signature to otherwise indicate agreement and consent to be bound.
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