It’s not often that a court case affects the design and the layout of an e-commerce store, but if you run your own, you should take notice. Technology and Marketing law blog takes a look at a recently handed-down decision by the 9th Circuit in the Nguyen v. Barnes & Noble case.
The important takeaway from the case for an eCommerce retailer is that according to the judges, there are two types of online agreements:
(1) Explicit agreements, which require users to click on an “I agree” box
(2) Implied agreements, where the terms and conditions are posted on the bottom of the webpage and the user is not required to explicitly express their agreement as a condition of proceeding.
If your checkout flow is not using an explicit checkbox that asks the user to agree to the Terms and Conditions you may be opening yourself to having the T&Cs invalidated and every condition you inserted in there to protect yourself being discarded as B&N just found out and Zappos recently learned the hard way as well.
A simple solution according to the T&M blog is to cross-reference the T&Cs during checkout, which makes them legally effective. “Where the company engages in a transaction or requires the user to create an account, there is little reason for this to not be buttoned up.”
So as you look to update your checkout flow for the holiday season, remember to add an explicit T&C agreement checkbox and keep your business in the legal safe zone.
Disclaimer: The above post is for informational purposes only; please consult your attorney for legal counsel around online agreements.