After she became dissatisfied with the services of home remodeling contractors that she had obtained through an Internet referral website, Victoria sued the referral business for breach of contract, fraud, misrepresentation, and negligence.
The referral website involved a series of web pages. Victoria entered project information on the first page, clicked to the next page, entered more information, and so on. Each page was hyperlinked to the referral company’s terms and conditions, one of which was a forum selection clause limited to Denver County, Colorado. Victoria never actually looked at the terms and conditions before she brought suit in her home state of Missouri. The dismissal of the suit for being in the wrong jurisdiction was upheld on appeal.
The process by which Victoria agreed to sue only in Colorado was not as clear-cut as when a customer shows assent by clicking to show acceptance of terms and conditions (a “ clickwrap” agreement), but it still was sufficient to bind the website user. The referral business had not unreasonably hidden the terms and conditions. Victoria assented to the forum selection clause contained in the website “ browsewrap” agreement, although assent did not require a “ click,” where the website placed an immediately visible notice of the existence of license terms on the site by stating “ [b]y submitting you agree to the Terms of Use,” and by placing a blue hyperlink next to the button that the user clicked.
There was also a second link to those terms that was visible on the same page without scrolling, and similar links were on every other website page. In short, the referral business was sufficiently up front about the forum selection clause, and it was not its fault that Victoria had not actually navigated on the website so as to read about that term.
The court acknowledged that the legal effect of online agreements may be an “ emerging area of the law.” Nonetheless, courts still apply traditional principles of contract law, which means focusing on whether the plaintiff had reasonable notice of, and manifested assent to, the agreement and all of its terms and conditions. Since notice and assent were both present in Victoria’s case, she had to sue the referral business in Colorado or not at all.