77 Wash. L. Rev. 481 (2002)
Forum-Selection Clauses in Consumer Clickwrap and Browsewrap Agreements and the Reasonably Communicated Test

handle is hein.journals/washlr77 and id is 491 raw text is: Copyright Q 2002 by Washington Law Review Association

FORUM-SELECTION CLAUSES IN CONSUMER
CLICKWRAP AND BROWSEWRAP AGREEMENTS AND
THE REASONABLY COMMUNICATED TEST
Kaustuv M. Das, Ph.D.
Abstracr Although forum-selection clauses in clickwrap and browsewrap agreements
have been addressed in only a limited number of decisions, they are likely to become
increasingly relevant with the growth of e-commerce. Courts that have enforced forum-
selection clauses in click-wrap and browsewrap agreements have often done so without
determining whether the consumer received notice of the clause. When courts have addressed
notice, they have not used any uniform standard for determining adequacy of notice. Forum-
selection clauses in dlickwrap and browsewrap agreements further the policies underlying the
Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise
Lines, Inc. v. Shute, and courts should be willing to enforce such clauses. Even so, courts
should make adequacy of notice a threshold question before enforcing forum-selection clauses
in these agreements. In determining adequacy of notice, courts should adopt the two-pronged
reasonably communicated test employed by courts examining the enforceability of
limitations in other adhesion contracts. Fh-st, a court should examine the physical
characteristics of the clickwrap or browsewrap agreement. Second, a court should consider
extrinsic factors indicating the consumer's ability to become meaningfully informed of the
forum-selection clause. Only if the e-vendor meets the burden of showing that the forum-
selection clause was reasonably communicated to the consumer should the court enforce the
clause.
Dorothy, a resident of Kansas, subscribed to InterTrade, an online
investment service! The first time Dorothy visited InterTrade's webpage,
she was presented with numerous flashing signs and hyperlinks2 pointing
to the latest and greatest stock tips. A prominent button allowed her to
download InterTrade's stock analysis program. Dorothy failed to scroll
down far enough to note a hyperlink labeled Terms of Use, one of
many at the bottom of the webpage. Unfortunately, the downloaded
program contained a computer virus that destroyed all the data on
Dorothy's computer. When she called to complain, Dorothy was
informed that, according to InterTrade's 'Tenns of Use, all software
available from InterTrade's website comes with warranties limiting
liability to the price of the software. Dorothy's suit against InterTrade, in
Topeka, Kansas, was dismissed because the 'Terms of Use webpage
includes a clause, under Miscellaneous, stating that all suits arising
1. Hypothetical created by the author.
2. A hyperlink is an underlined or otherwise emphasized word or phrase [on a webpage] that,
when clicked with the mouse, displays another document. WEBSTER'S NEW WORLD DICTIONARY
oF CowMurER ITRS 244 (6th ed. 1997).

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