Time for a further summary of the cases of online contract conclusion.
HomeAdvisor, Inc. v Waddell, 2020 WL 2988565 (Tex. Ct. App. June 4, 2020)
The court considers this to be a valid conclusion of a contract:
The court declares:
Overall a good result for HomeAdvisor. HomeAdvisor could easily have done better, e.g. For example, placing the call-to-action over the orange button, increasing the font size, and linking the orange button action to the call-to-action – or better yet, adding a mandatory checkbox for the call – to act that requires approval before the orange button becomes active becomes.
Acaley v Vimeo, Inc., 2020 WL 2836737 (N.D. Ill. June 1, 2020)
Despite some dubious implementation decisions, the court confirmed the contract design:
The plaintiff attacked the clarity of the call to action, but it was good enough:
Wow, it would be so easy to fix all of that. Your call to action should be in the form of an "if x, then y" statement, with X pointing to the action button on the page or, better yet, a mandatory check box on its own.
Berman v Freedom Financial Network, LLC, 2020 WL 5210912 (N.D. Cal. Sept. 1, 2020)
The TOS arbitration clause failed. The defense has a problem with bringing the correct evidence to court:
Bhadania broadly explains how he "recreated" the multiple web pages that each plaintiff would have seen if they had visited the websites, based on a unique visitor ID generated for each session and "newly generated images" of the websites. The exhibits submitted by Bhadania correspond to blanket contracts with no clear indication that these plaintiffs have consented to them. Fluent chose to remove other pages from the multi-page "flow" for these website visits, which may have indicated that those particular users interacted with those particular pages. Given that plaintiffs each make statements denying seeing elements of these sites, and defendants have failed to provide full information to authenticate the exhibits, the court finds that material facts are in dispute.
Remember that when you sign your online contract, you need the right content terms, the right formation process, and the right evidence to prove both. When I tell my students, I am assuming that everyone who worked on the contract had left the company at the time of the litigation.
The court declares:
There is no "I Agree" check box or button for the Terms and Conditions. As in Nguyen, the hyperlink to them is just near the button that the user needs to interact with in order to proceed. The "That's right, go on!" The "Next" and "Next" buttons clearly relate to entering other information on the page without agreeing to the terms and conditions. Although the user has to interact with the page and click a button in order to continue using it, that click is completely separate from consent to the terms and conditions or mandatory arbitration. In addition, the phrase “I understand and agree to the terms and conditions, which contain mandatory arbitration and data protection provisions,” is formatted in black on a white background that is extremely small compared to the larger, more colorful and contrasting fonts This makes it difficult to read on a large, high-resolution monitor, let alone a mobile device. The fact that the very small text that contains the hyperlink to the general terms and conditions also uses the words "including mandatory arbitration" does not change the analysis, as the website does not require consent to this statement.
So much failure and yet so avoidable. The call-to-action speech was not adequately linked to the desired action, and the call-to-action was too small and visually indistinct. Good rule of thumb: the call-to-action font should be the same size as the largest font elsewhere on the page. I am sure you can do better than these defendants.