Courts are increasingly taking a magnifying glass to electronic contracting processes, particularly how the presentation of the terms of service and call to action are displayed. As such, companies might take a second look at their own user registration and e-commerce purchase processes to ensure they offer reasonably conspicuous notice of the existence of contract terms and obtain manifestation of assent by the user to those terms. Courts will generally enforce clickwrap style agreements as long as the layout and language of the site or mobile app give the user reasonable notice that a click will manifest assent to an agreement. Last year, the Second Circuit, in the notable Meyer opinion, blessed Uber’s mobile contracting process, but in considering a similar Uber platform, a New York state court late last month declined to compel the arbitration of user claims due to what the court considered an “ambiguous registration process.” (Ramos v. Uber Technologies, Inc., 2018 NY Slip Op 28162 (N.Y. Sup. Ct. Kings Cty. May 31, 2018)). Such conflicting rulings highlight the importance of web design in determining if a service’s terms are deemed enforceable.
In recent years, courts have issued varying rulings as to whether online or mobile users adequately consented to user agreements or terms of service when completing an online purchase or registering for a service. In each case, judges have examined the facts closely, particularly the user interface that presents the terms to the user before he or she completes a transaction. In an important ruling vindicating Uber’s user registration and electronic contracting process, the Second Circuit reversed the lower court and held that the notice of Uber’s terms of service was reasonably conspicuous and that the plaintiff unambiguously manifested assent to the terms, and therefore agreed to arbitrate his claims with Uber. (Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017)). While clearly good news for Uber in this litigation, in blessing Uber’s mobile contracting process, the court also established something of a template for other mobile apps to follow to ensure that their terms and conditions will be enforceable against their members or users.