PING: Illinois Appeals Court Enforces “Browse-Wrap Agreement”URL: http://www.inhouseblog.com/inhouseblog/2005/08/illinois_appeal.htmlIP: 66.151.149.17BLOG NAME: InhouseBlog – News for Inhouse CounselDATE: 08/28/2005 10:03:40 PMNew Illinois case supports the enforceability of “browse-wrap” agreements.

An Illinois appeals court held that buyers who purchasedcomputers over the Internet were bound to an arbitration clause contained inthe “Terms and Conditions of Sale,” even though the buyers were not requiredto click on an “I agree” button specific to those terms of sale.

The computer purchasers brought an action against thecomputer manufacturer, Dell, claiming that it falsely advertised the Pentium 4microprocessor was the fastest chip available. Dell moved to compel arbitration; the trial court denied themotion. Dell appealed, and theappellate court reversed.

The buyers had purchased the computers on Dell’s web site,which contained five pages of forms the buyers had to fill out to make thepurchase. Each of these five pagescontained a blue hyperlink to the “Terms and Conditions of Sale.” The “Terms and Conditions of Sale” includedan arbitration clause. The “Terms andConditions of Sale” were also included on the printed invoice that came withthe computer.

Dell argued that the blue hyperlink to the “Terms andConditions of Sale” was sufficient to make the purchasers aware they wereagreeing to the arbitration clause. Thepurchasers argued, however, that Dell should have displayed on itsorder-confirmation web page an “I accept” box, on which thepurchasers must click to manifest assent to the agreement before the purchaseproceeded.

The appellate court held that the terms were conspicuousenough that the purchasers should have known what they were agreeing to:

The blue hyperlink entitled “Terms and Conditionsof Sale” appeared on numerous Web pages the plaintiffs completed in theordering process. The blue hyperlinks for the “Terms and Conditions ofSale” also appeared on the defendant’s marketing Web pages, copies ofwhich the plaintiffs attached to their complaint. The blue hyperlinks on thedefendant’s Web pages, constituting the five-step process for ordering thecomputers, should be treated the same as a multipage written paper contract.The blue hyperlink simply takes a person to another page of the contract,similar to turning the page of a written paper contract. Although there is noconspicuousness requirement, the hyperlink’s contrasting blue type makes itconspicuous. Common sense dictates that because the plaintiffs were purchasingcomputers online, they were not novices when using computers. A person using acomputer quickly learns that more information is available by clicking on ablue hyperlink.

Hubbert v. Dell Corp., 2005 Ill. App. LEXIS 808 (Aug. 12,2005).

[Meredith R. Miller]