Nguyen v. Barnes & Noble Inc. (9th Cir. August 18, 2014) (1.usa.gov/1kP5ECD) -According to the Ninth Circuit, "where a Web site makes its terms of use available via a conspicuous hyperlink on every page of the Web site but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on-without more-is insufficient to give rise to constructive notice." While courts have upheld the terms of browsewrap agreements, particularly in the business-to-business context, this decision indicates the advisability of including an arbitration provision on an e-commerce site in a "clickwrap" agreement requiring consumers to affirm consent, usually by clicking a button or in a box.
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