In the world of internet contracts, you will purchase products from websites that do not require you to click or e-sign or acknowledge their terms and conditions. Your usage of the site is said to be “subject to terms and conditions” even though you haven’t read them and don’t really have any option to negotiate such terms and conditions. Your only option not to be bound by the “terms and conditions” is not to purchase that product. When you are in one of these situations, you are facing what the law calls a “browsewrap” agreement; an agreement entered just by merely “browsing” that website.
A “browsewrap” agreement occurs when a website merely provides a link to the terms and conditions and does not require the user to click an acknowledgement of such terms. Vitacost.com, Inc. v. McCants, 210 So. 3d 761, 762 (Fla. 4th DCA 2017). “The defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the terms of the browsewrap agreement.” Fridman v. 1-800 Contacts, Inc., 554 F. Supp. 3d 1252, 1259 (S.D. Fla. 2021).
Browsewrap agreements are only enforced when the consumer has “actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice.” Vitacost.com, 210 So. 3d at 762. “Whether a reasonably prudent user is put on inquiry notice turns on the clarity and conspicuousness of the terms.” Fridman, 554 F. Supp. 3d at 1260. “In the context of web-based contracts, clarity and conspicuousness are a function of the design and content of the relevant interface.” Id. “Features such as size of type, conspicuousness and clarity of notice on the face of the contract, and the ease with which the plaintiff can read the provisions are all important considerations.” Id.
Forum selection clauses in browsewrap agreements.
In Florida, in general, there are three recognized exceptions to the enforcement of a forum selection clause: (1) where the clause is tainted by fraud, (2) where the clause is the product of overwhelming bargaining power on the part of one party, and (3) where the clause is the sole basis upon which to create jurisdiction in a chosen forum. See Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So. 2d 131, 134 (Fla. 4th DCA 2001). The latter two are especially relevant here.
A Court may refuse to enforce forum selection clauses which are “unreasonable or result from unequal bargaining power.” Kanner v. Pan Am. Assistance, Inc., 807 So. 2d 80, 82 (Fla. 3d DCA 2001). A Court may also refuse to enforce a forum selection clause that is “the sole basis upon which to create jurisdiction in a given forum.” Friedman v. Am. Guardian Warranty Services, Inc., 837 So. 2d 1165, 1166 (Fla. 4th DCA 2003); see also Manrique v. Fabbri, 493 So. 2d 437, 438 (Fla. 1986) (holding forum selection clause may not be used to “transfer a local dispute to a remote and alien forum in order to inconvenience one or both of the parties”).
The principles governing enforcement of forum selection clauses in browsewrap agreements are no different than the those governing forum selection clauses in regular, non-browsewrap agreements. At the end of the day, it will boil down to a combination of the factors that govern enforcement of forum selection clauses and, in the context of browsewrap agreements, “[w]hether a reasonably prudent user is put on inquiry notice turns on the clarity and conspicuousness of the terms.” Fridman, 554 F. Supp. 3d at 1260.
For more information regarding browsewrap agreements or internet contracts contact a contract attorney at Ayala at 305-570-2208.