Recent Decisions – Consumers Bound By Web Agreements Where They Had Notice
In December,a federal district court for Northern California followed the Barnes and Noble case and held users that had agreed to a click-wrap agreement at the time of registration, but were never put on notice of changes to the agreement could not be bounded by the amended language.
Safeway’s claim that a court could infer a customer’s assent to the revised terms from that customer’s continued use of the safeway.com website resembles the type of browsewrap agreement the Ninth Circuit rejected in Nguyen.Although Class Members were presented with a clickwrap agreement at the time of their registration, they were never presented with a subsequent clickwrap agreement asking them to consent to the revised Special Terms. As was the case in Nguyen,Class Members could have completed all their subsequent purchases on safeway.com without ever visiting the webpage hosting the revised Special Terms which Safeway claims governed the sale and without ever clicking anything on the web site that would indicate that they have agreed to those terms.Customers’ lack of awareness that the Special Terms have been altered undermines Safeway’s claim that each purchase on safeway.com constitutes an agreement to those changes. Douglas teaches that assent to a contract’s revised terms “can only be inferred ”from a customer’s ongoing use of a service “after [the customer] received proper notice of the proposed changes.” Douglas, 495 F.3d at 1066.
. . . the imposition of such an onerous requirement on consumers would be particularly lopsided, as Safeway is aware that it has — or has not — made changes to the Terms and is the party to the contract that wishes for the new terms to govern. “[T]he onus must be on website owners to put users on notice of the terms to which they wish to bind consumers.” Nguyen, 763 F.3d at 1179. Safeway is best positioned to make sure customers are aware of changes that Safeway has made to its contract with Class Members. After making a change, Safeway can take any number of actions to alert users that the Special Terms they agreed to at registration have been altered. For instance, Safeway could ask customers to click to indicate that they agree to the new Special Terms or send all existing safeway.com customers an email in order to ensure that every consumer is aware of a change in the Special Terms prior to making a purchase. When Safeway changed the Special Terms on November 15, 2011, it opted to do neither.