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Once again, a court has held ruled that burying the link to a browsewrap agreement (in this case Terms and Conditions) in the footer of a website is an excellent way to render that browsewrap agreement meaningless and unenforceable. The ruling comes from the United States District Court, Eastern District of California. The website in questions is Job.com, a website for job-seekers and employers. Job.com, as part of its case, tries to enforce the browsewrap Terms and Conditions to assert a breach of contract claim.
Job.com employed a link to its Terms and Conditions at the bottom of each page. Job.com argued that its browsewrap Terms and Conditions were enforceable against the plaintiff (1) by virtue of his use of the Job.com website, and (2) because the plaintiff was a "sophisticated internet user" who was familiar "with websites with similar browsewrap agreements, including his own personal website."
The court didn't buy it.
Citing Nguyen v. Barnes & Noble, Inc, the court says:
Once again, this comes down to whether a website user has constructive notice that its use of a website is subject to a browsewrap agreement. Simply dropping a link in the footer to a browsewrap agreement and crossing your fingers is not enough. In laymen's terms, it needs to stick out and be obvious to the site user that use of the website is indeed subject to a browsewrap agreement in order for it to be enforceable.
Need help with your browsewrap agreement? Maybe PactSafe can help with our browsewrap widget.