A recent court ruling on a dispute between Barnes and Noble and a disgruntled customer left it in no doubt that if you want to protect yourself legally when selling online you need to gain explicit consent regarding your terms and conditions.
We’ve talked a lot about removing elements from your Magento One Page Checkout that you don’t really need. Now we want to talk about adding one that we hope you will never need – a clickwrap consent for your terms and conditions.
Barnes and Noble are up against a class action law suit due to poor stock control. During an internet-wide fire sale of HP Touch Pads, they took orders they could not fill. By the time they notified customers they could not fill their orders, the sale was over and so these customers missed out completely. But that is not what this is about. This is about the arbitration terms that Barnes and Noble wanted to enforce in dealing with the dispute. They wanted to deal with it out of court and claimed their website terms and conditions dictated that would be the case. However the judge in the matter disagreed and, in doing so, drew everyone’s attention to the difference between browserwrap and clickwrap.
Browser Wrap Agreements
The terms on the Barnes & Noble website were presented as a “browserwrap” agreement. Access to the terms page was via a hyperlink on the bottom of every page which is pretty common. They did not require customers to check a box to show they agreed to the terms before making a purchase, which is also pretty common. The claimant argued that Barnes & Noble had not provided him with sufficient notice of their terms, and that he had therefore not agreed to arbitrate claims. The judge agreed:
This is a significant legal ruling.
It’s a good idea for any B2C website to use a clickwrap agreement. A clickwrap agreement should include a link to the detailed terms and conditions and a check box that must be clicked before completing checkout. Of course, the ideal place is adjacent to the Place Order button. Simple enough but we recognize it does introduce possible friction. All up, you need to weigh the outcomes.
Find out how we can increase your online profit through optimization of your online business.