Want An Enforceable Online Contract? Don’t Use A Footer Link Called “Reference”–Zajac v. Walker

30 01 2017

This lawsuit involves the purchase of items I don’t understand. Let’s just call them “thingies.” The buyer Zajac needed thingies with an appropriate rating. It bought the thingies from a distributor, Walker, then realized the thingies didn’t have the appropriate rating. Recriminations and a lawsuit ensued.

The thingies’ manufacturer, Turck, sought a venue change based on the “terms of use” section of its website. The buyer had reviewed the manufacturer’s website to confirm the thingies’ rating. The manufacturer took the position that the buyer’s website review incorporated the terms of use into the transaction. But what did the manufacturer do to draw the buyer’s attention to these terms of use? Apparently, bupkis:

the terms of use page could be accessed by clicking on a small link at the bottom of Turck’s website entitled “Reference.” Users were not prompted to read or affirmatively agree to the terms of use.

The court is totally unimpressed with the manufacturer’s arguments (yes, the court calls the TOU a browsewrap but I’ll overlook that transgression):

Merely including terms of use on a website is not sufficient to incorporate those terms into legal relations between the website operator and the user, even where the user purchases an item or downloads software from the operator’s website….


Case citation: Zajac, LLC v. Walker Industrial, 2016 WL 3962830 (D. Maine July 21, 2016)

The content in this post was found at https://arstechnica.com/tech-policy/2016/07/photographer-sues-getty-images-for-selling-photos-she-donated-to-public/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



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