Want An Enforceable Online Contract? Don’t Use A Footer Link Called “Reference”–Zajac v. Walker

This lawsuit involves the purchase of items I don’t understand. Let’s just call them “thingies.” The buyer Zajac needed thingies with an appropriate rating. It bought the thingies from a distributor, Walker, then realized the thingies didn’t have the appropriate rating. Recriminations and a lawsuit ensued.

The thingies’ manufacturer, Turck, sought a venue change based on the “terms of use” section of its website. The buyer had reviewed the manufacturer’s website to confirm the thingies’ rating. The manufacturer took the position that the buyer’s website review incorporated the terms of use into the transaction. But what did the manufacturer do to draw the buyer’s attention to these terms of use? Apparently, bupkis:

the terms of use page could be accessed by clicking on a small link at the bottom of Turck’s website entitled “Reference.” Users were not prompted to read or affirmatively agree to the terms of use.

I screenshotted Turck’s home page on July 26, 2016. Look at the bottom footer block for the almost-invisible “reference” link:

The court is totally unimpressed with the manufacturer’s arguments (yes, the court calls the TOU a browsewrap but I’ll overlook that transgression):

Merely including terms of use on a website is not sufficient to incorporate those terms into legal relations between the website operator and the user, even where the user purchases an item or downloads software from the operator’s website….

it does not appear that Zajac was on constructive notice of the terms of use of the Turck website. The applicable link on Turck’s homepage was inconspicuously placed in small font at the bottom of the homepage, located amongst several other small links. Notably, the link was not named “terms of use” or any synonymous phrase, but was rather titled “Reference.” It is plain to the Court that the word “Reference” does not intuitively indicate to a user that clicking on that particular link will reveal terms of use. The Court is aware of nothing in the design of the website or the content of the product-specific pages that would provide a more evident signal of the terms of use posted within the website….Here, the link was not given a title intuitively related to the terms of use contents, the link was not proximate to buttons a user would click to initiate a purchase, and no purchase was made through Turck’s website.

“Reference” as the link description for an online contract is about the worst I can recall seeing litigated in court. Calling the link “Terms of use” or similar contract appellations shouldn’t change the analysis much, but the court indicates that would have been slightly better. What would users expect to find at the terminus of a “reference” link? I have no clue.

(Please recall that I am the son of a reference librarian, so “reference” has a special and personal meaning to me. But I’ll admit that no one assumes there’s going to be something exciting associated with “reference”).

What should the manufacturer done differently? Just about everything. But mostly, if your argument is that you formed a contract with a buyer because they visited your website during the shopping process before making the purchase somewhere other than the website, my vote is that you save your dollars and don’t even litigate the issue.

Case citation: Zajac, LLC v. Walker Industrial, 2016 WL 3962830 (D. Maine July 21, 2016)