One of the most descriptive cases of these decisions was the Combs v. Paypal case. Click Here for Full Case Text. In this case Paypal required that users click through their user agreement which contained various clauses. In this case the court ruled that while the user did assent to be bound by the contract, the contract taken as a whole was unconscionable. So Paypal could not compel arbitration because the contract was not enforceable. The takeaway being that the court will still assess the contract for being unconscionable.
In a case where the court upheld the contract, Feldman v. Google, Click Here for Full Case Text, the court found that a forum selection clause was enforceable as the plaintiff assented to the terms. It was therefore reasonable to assume he saw the terms and agreed to the terms. The court said unless the plaintiff could prove fraud or deception in the terms than most of the terms would be enforceable.
See these cases for more litigation over click-wrap agreements.
” In re RealNetworks, Inc. Privacy Litigation, No. No. 00-1366, 2000 WL 631341 (D. Ill. May 8, 2000) (upholding an arbitration clause)
Hotmail Corp. v. Van$ Money Pie, No. 98-20064, 1998 WL 388389 (N.D. Cal. Apr. 16, 1998) (granting preliminary injunction for alleged breach of contract for violating the terms of service by using a Hotmail account to send spam or pornography). The court said that clicking the clickwrap button after notice gave consent.
I. Lan Sys., Inc. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328, 336 (D. Mass. 2002) (upholding a clickwrap agreement on two grounds: first, clickwrap is simply “Money now, terms later” contract formation; second, the court found that the “additional terms” of the clickwrap license was not material under UCC (§207(2)(b)).
Caspi v. Microsoft, LLC, held a forum selection clause in an online membership agreement was consented to when the user clicked the “I agree” symbol of the agreement in order to proceed with registration.
In A.V., et al. v iParadigms, LLC, Judge Claude M. Hilton granted summary judgment on the students’ complaint in favor of iParadigms/Turnitin, because they had accepted the click-wrap agreement on the Turnitin website.
Scarella v. America Online, forum selection clause accepted but not enforced as matter of public policy.”
For more information on Click-Wrap Agreements see these sources.