of any disputes. Amazon's arbitration clause was upheld by a court some time ago. But perhaps a court would feel this case is just a little bit different...!
Here's something from the American Bar Association in 2015 for a quick browse.
From the Chair: “Click Here to Accept the Terms of Service”
Online agreements do not always fit neatly within the clickwrap or browse- wrap categories. Sometimes, the agreements display features of both. In Fteja v. Facebook, Inc., the District Court for the Southern District of New York considered the enforceability of the forum selection clause in the hybrid clickwrap- browsewrap agreement between Facebook and its user, requiring that all disputes be litigated in California.41
The Facebook page stated, “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service.”42 The court commented that Facebook’s terms of use are like a browsewrap in that the terms are only visible via a hyperlink, but also like a clickwrap in that the user must click “Sign Up” to assent to the hyperlinked terms.43
The court analogized Facebook’s terms to a sign next to a bin of apples that says, “By picking up this apple, you consent to the terms of sale by this fruit stand. For those terms, turn over the sign.”44 Applying that analogy to the instant case, the court saw no reason why the agreement should not be upheld simply because Facebook’s terms of use appear on another screen. The court concluded that the Facebook user consented to Facebook’s terms of use and also to the forum selection clause therein, and thus granted Facebook’s motion to transfer to the Northern District of California.45
Fteja shows that the more an online agreement resembles a traditional clickwrap agreement, the more willing courts are to find the notice necessary to give rise to constructive assent.46 Specifically, a major factor for the Fteja court in holding the agreement enforceable was that Facebook informed the user of the consequences of clicking “Sign Up,” and showed the user where to click to understand those consequences.
https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html
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