The court said that because browse-wrap agreements do not require users to expressly manifest assent, their validity “depends on whether the user has actual or constructive knowledge of a website’s terms and conditions.” In this case, no evidence of actual knowledge was presented, and despite conspicuous hyperlinks to the TOU, the site's failure to require any action or provide further notice of the terms resulted in a finding of no constructive knowledge either.
What This Decision Means for Small Businesses
In light of the Nguyen case, small businesses operating websites should do two things:
- Revamp Site Flow if Current TOU Assent is Deficient: If counsel determines that current site flow is deficient under the Nguyen standards, your small business website’s TOU process may need to be revamped. Particularly, if your website currently uses a hyperlinked “browse-wrap” agreement, consider implementing a “click-wrap” function that requires consumers to affirmatively assent to your TOU to avoid a Nguyen-like situation.