This case emphasises the importance of ensuring firstly, that standard terms and conditions in an online contract are clearly brought to the attention of the counterparty (ideally by requiring that the party click through to the terms in order to proceed) and secondly, that the counterparty briefly read those terms (rather than blindly clicking on to proceed) so that they are aware of at least the key practical terms of their agreement (relevantly in this case, the law and jurisdiction that will apply to any claim under the contract). This case also provides some useful analysis of when a Court might find that a party has shown cause that they should not be held to an exclusive jurisdiction clause.
Agoda Pte Ltd (Agoda) is a Singaporean company which provides an online booking portal for booking accommodation at hotels around the world. Ms Gonzalez used her home computer in Sydney to book accommodation in Paris through the Agoda portal. The “Payment details page” included a link to Agoda’s standard terms of booking (Terms) and the words “I agree with the booking conditions and general terms by booking this room…” appeared above the “Book Now” button that Mrs Gonzalez needed to click in order to proceed. The Agoda booking portal did not require Mrs Gonzalez to check a box or click on a link to explicitly accept the Terms.
The Terms included an exclusive jurisdiction clause that designated the law of Singapore as the governing law and provided for any dispute to be submitted to the courts of Singapore.
During her trip, Ms Gonzales suffered injury which she claimed occurred because the shower screen in the bathroom of her hotel room was not correctly fitted. Ms Gonzalez brought proceedings claiming damages against Agoda in the New South Wales Supreme Court.
The relevant question for the Court was whether it should decline to exercise jurisdiction, and Button J held that:
- an exclusive jurisdiction clause in a contract should be given substantial weight; and
- on its face, the contract between Agoda and Mrs Gonzalez contained an exclusive jurisdiction clause and it was very probable that such clause was incorporated into the contract;
- the fact that Mrs Gonzalez did not explicitly need to “tick a box” with regard to the exclusive jurisdiction clause was significant but not determinative;
- on an objective analysis of the contractual intentions of the parties, the Terms were incorporated into the contract by signature and by reference. In this regard, Button J pointed to:
- the signature on the digital document by Mrs Gonzalez clicking “Book Now” by virtue of section 9(1) of the Electronic Transaction Act;
- the location of the link to the Terms above the “Book Now” button. The Terms were readily available to Mrs Gonzalez and Agoda did not try to conceal them. Any failure on Mrs Gonzalez’s part to read and comprehend the Terms was immaterial; and
- the standard nature of the Terms; and
- there wasn’t anything unfair in Agoda trying to protect itself from claims being litigated in the courts of countless countries applying countless different laws.
In finding that Mrs Gonzalez had not shown cause as to why she shouldn’t be held to the exclusive jurisdiction clause, Button J pointed to the following factors:
- the proper law of the contract was Singaporean law. Agoda was domiciled in Singapore, all of its employees were there, the contract was performed by Agoda in Singapore and the Terms were standard form that were intended to apply to contracts formed in multiple jurisdictions;
- the applicable standards of construction and maintenance of shower screens must be those of France, and neither Australia nor Singapore were optimal for the application of French law;
- inconvenience and expense were foreseeable outcomes of Ms Gonzalez (objectively) agreeing to the exclusive jurisdiction of Singapore and in any event, technological developments eased the practical issues with litigating in Singapore;
- other carers or family members could look after Ms Gonzalez’s autistic grandson during any absence from Australia (if such absence was truly necessary); and
- the evidence of Mrs Gonzales’s inability to fund litigation on a conventional basis (there is no “no win no fee” system in Singapore) was not sufficiently detailed and the principle that a person should be held to their bargain, even it turns out to be financially disadvantageous) had a role to play.