BizTech Law Blog

Invalid "Terms and Conditions" link to bind consumer to restriction

Are you purchasing items online, or, are you a merchant selling products using a website?  If so, you should check your Terms and Conditions link.

The case in point is Hines v Overstock.com Inc., and is relatively new under commercial law standards.

The court ruled that a consumer who incurred a restocking fee, after she returned a vacuum cleaner purchased on Overstock.com could proceed with a putative class action suit alleging breach of contract, fraud and other state causes of action against the company, despite an arbitration clause in the "Terms and Conditions" clause accessible by a link on the company's website.

The consumer claimed she had no notice of the "Terms and Conditions" clause because the link was only visible if the user scrolled down to the bottom of the page - an act that was not required to consummate the purchase.  A federal district court in New York ruled that the "Terms and Conditions" link, located at the bottom of the page, did not give consumers constructive notice of the "Terms and Conditions."

The phrase "Entering this Site will constitute your acceptance of the Terms and Conditions" was contained, only, within the "Terms and Conditions" clause itself.

For further inquiry you should check with an experience IT lawyer and review the salient portions of the case Hines v Overstock.com, Inc., 2009 U.S. Dist. LEXIS 81204 (E.D. N.Y. Sept. 4, 2009).

Categories: E-Commerce