Compare and contrast clickwrap and browsewrap agreements and identify decision factors on when an organization should select one over the other.

Optional: The full Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362 (E.D.N.Y. 2009)Links to an external site. case link is provided if you choose to review the case in its entirety.

Plaintiff Cynthia Hines (“Plaintiff” or “Hines”) initiated this purported class action pursuant to the Court’s diversity jurisdiction, alleging that defendant Overstock.com, Inc.’s (“Defendant” or “Overstock”) decision to impose a “restocking fee” amounted to a breach of contract. Overstock is an online, “closeout” retailer. On or about January 8, 2009, the Plaintiff purchased an Electrolux Oxygen 3 Ultra Canister vacuum from Overstock’s website. After receiving the vacuum, Plaintiff returned it to Defendant and was reimbursed the full amount she had paid for it, minus a $30.00 restocking fee. Plaintiff claims that she had been advised that she could return the vacuum without incurring any costs and that Defendant never disclosed that a restocking fee would be charged.

In support of the Motion, Defendant avers that: “All retail purchases from Overstock are conducted through Overstock’s Internet website. When an individual accesses the website, he or she accepts Overstock’s terms, conditions, and policies, which govern all of Overstock’s customer purchases.” Overstock’s “Terms and Conditions” state that “Entering this Site will constitute your acceptance of these Terms and Conditions” and include a provision that requires that “any dispute relating in any way to your visit to the Site . . . be submitted to confidential arbitration in Salt Lake City, Utah.”

Plaintiff affirms, however, that she “never had any notice that disputes with Overstock.com require mandatory arbitration in Salt Lake City, Utah.” Plaintiff affirms that when she accessed Overstock’s website to purchase the vacuum, she was never made aware of the Terms and Conditions.

Discussion 

It is a basic tenet of contract law that in order to be binding, a contract requires a “meeting of the minds” and “a manifestation of mutual assent” [citations omitted]. The making of contracts over the internet “has not fundamentally changed the principles of contract.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2nd Cir. 2004). On the internet, the primary means of forming a contract are the so-called “clickwrap” (or “click-through”) agreements, in which website users typically click on “I agree” box after being presented with a list of terms and conditions of use, and the “browsewrap” agreements, where website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, a browsewrap agreement “does not require the user to manifest assent to the terms and conditions expressly . . . [a] party instead gives his assent simply by using the website” [citation omitted]. In ruling upon the validity of a browsewrap agreement, courts consider primarily “whether a website user has actual or constructive knowledge of a site’s terms and conditions prior to using the site.”

In Specht, the plaintiffs had downloaded free software from the defendant’s website; because they did not scroll down the page, they did not see the notice advising site-users to review and agree to the software license agreement’s terms prior to downloading. The Second Circuit held that the plaintiffs were not bound by the license agreement’s terms because they “were responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms” [citations omitted]. Motise v. America Online, Inc., 346 F. Supp. 2d 563, 564–65 (S.D.N.Y.2004) (finding no notice where terms of use were available on the website, but not presented to the plaintiff).

In the instant case, it is clear that Plaintiff had no actual notice of the Terms and Conditions of Use. Defendant has also failed to show that the Plaintiff had constructive notice. The Hawkins Affidavit, upon which Defendant relies, conclusory states that by accessing Overstock’s website, an individual accepts Overstock’s Terms and Conditions-but, crucially, does not explain how a site- user such as Plaintiff is made aware of the Terms and Conditions. Despite Defendant’s assertion that “all customers to Overstock’s website are advised of the company’s terms and conditions prior to their entry onto the site,” . . . Notably, unlike in other cases where courts have upheld browsewrap agreements, the notice that “Entering this Site will constitute your acceptance of these Terms and Conditions,” was only available within the Terms and Conditions . . . Hines, therefore, lacked notice of the Terms and Conditions because the website did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and Conditions. Very little is required to form a contract nowadays—but this alone does not suffice.

Case Questions

For this assignment you will submit a voice over PowerPoint presentation. The presentation should include an introduction, conclusion, and reference slides. In addition, the presentation should include 3 to 5 slides of content based on supplemental research using scholarly resources. At a minimum, your presentation should answer the following questions. In addition, you should address two to three additional concepts based on your research. Cite all of your references using APA format.

1. What are the basic tenets or doctrines under contract law for a binding contract?
2. Compare and contrast clickwrap and browsewrap agreements and identify decision factors on when an organization should select one over the other.
3. How did the court’s ruling in the case compare to other state or federal court rulings?
4. Research examples of how other organizations leverage clickwrap and browsewrap agreements. Based on this research, provide specific examples for how Overstock.com could have provided actual notice of the restocking fee?

View RubricAssignment RubricAssignment RubricCriteriaRatingsPtsContent Qualityview longer description15 ptsFull MarksApply knowledge from coursework and/or outside resources in a manner that is coherent, thorough, and relevant to the topic. Clearly explain your argument/point. Provide evidence to support your argument/point.0 ptsIncomplete/not demonstrated/ 15 ptsOrganization and Presentationview longer description3 ptsFull MarksFollow basic rules of strong presentation skills, including a clear agenda, logical organization and transitions, clear and appealing slides, and recap of main points.0 ptsIncomplete/not demonstrated/ 3 ptsCitations and Spellingview longer description2 ptsFull MarksUse Proper APA formatting when citing your sources. Base your ideas on research or theory. When you use someone’s words exactly, quote, and cite. Check your document for proper grammar, formatting, and spelling.0 ptsIncomplete/not demonstrated/ 2 ptsTotal Points: 0

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