New Hampshire’s first foray into this quagmire seems to be Ford v. Netgear, Inc., Hillsborough-North No. 216-2019-CV-00704 (March 9, 2020). The issue was whether an online purchaser of a WiFi system had agreed to arbitrate any disputes with the seller. The Court concluded that he had, by clicking a box on the registration page directly below text which recited that doing so signified agreement to the seller’s terms and conditions (which happened to include an arbitration clause). The terms and conditions were found on a separate page that the plaintiff insisted he never visited, although a prominent hyperlink to those terms would have taken him there had he bothered to click on it. That was enough for the Court. Could the seller’s website have declined registrations until the hyperlink was clicked? Sure. Was the seller required to set up its website that way in order to prove the purchaser’s assent? No.
Similarly, Wollen v. Gulf Stream Restoration and Cleaning, LLC, 468 N.J. Super. 483, 259 A.3d 867 (2021), declined to enforce a contractor referral service’s arbitration provision in its terms and conditions reachable by a hyperlink from its search page. According to the Court, the positioning of the hyperlink on the webpage “did not provide reasonable notice of HomeAdvisor’s terms and conditions to the reasonably prudent internet user.” Id. at 878. As was true of Kauders, “HomeAdvisor did not require plaintiff to open, scroll through, or acknowledge the terms and conditions by ‘clicking to accept’ or checking a box that she viewed them before clicking the View Matching Pros submit button.” Id. at 879.
If you are “old school” and think that paperless contracting doesn’t happen in the construction industry, think again. In recent years I have noticed more and more general contractors and supply houses whose subcontracts and credit applications are not only electronically signed, but incorporate by reference terms and general conditions that are accessible only on their websites. Those websites should be designed so as to minimize claims of surprise and lack of assent. While courts may well be more solicitous of online consumers’ potential confusion as compared to commercial users, it is safe to say that any online user is more likely to be bound to terms and conditions found on a different webpage than the one he clicks if those terms are accessible by a hyperlink which is (a) conspicuous, and (b) positioned on the webpage where viewers are likely to see it before they click to signify assent.