A clickwrap agreement between a retail Web site operator and a commercial party was enforceable because, among other things, the online contract formation process that led to the agreement was “consistent with industry standards” and thus could not be said to be substantively unconscionable, a district court ruled. The court also rejected the plaintiff's argument that its employee did not know that he was entering into a contract and that he was not authorized to do so, noting that the employee was over 18, the employee admitted checking the “I accept … the terms of service” box that was adjacent to a clickable icon at which the terms could be accessed, and that it was undisputed that the CEO of the plaintiff company reviewed the terms of service and that the company paid for the services that were provided under the contract. In rejecting the substantive unfairness argument, the court noted that the contract formation process on the Web site of the plaintiff who was seeking to avoid the enforcement of the clickwrap agreement was similar to that of the Web site operator, and the terms on the plaintiff's own Web site appeared to be similar to those in the agreement that it was challenging.

Appliance Zone, LLC v. Nextag, Inc., 2009 U.S. Dist. LEXIS 120049 (S.D. Ind. Dec. 22, 2009) Download PDF