The court explained, “Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly . . . [a] party instead gives his assent simply by using the website.” The court continued, “Because no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of a website’s terms and conditions.”
The court did point out that were there any evidence in the record that Nguyen had actual notice of the TOU or was required to affirmatively acknowledge the TOU before completing his online purchase, the outcome of the case might have been different.
The takeaways from this case are two-fold: First, businesses should review their online TOU and the need for users to affirmatively acknowledge the TOU, or display the TOU conspicuously enough to put users on inquiry notice. Second, in the context of litigation defendants must develop the record sufficiently enough to support their contentions. In Nguyen, there was evidence that the plaintiff was familiar with passive TOU on other websites, but that did not carry enough weight with the appeals court to establish that the plaintiff was aware of the TOU on Barnes & Noble’s website.