SJC Upholds Clickwrap Agreement to Arbitrate
Earlier this year, a posting in The Fitch Briefs previewed an issue before the Massachusetts Supreme Judicial Court (“SJC”) concerning clickwrap agreements – specifically, whether an online Uber clickwrap agreement to arbitrate was enforceable against an Uber user who filed suit against the company after suffering serious injuries while using Uber’s services. Recently, in Good v. Uber Technologies, Inc., et al., the SJC held in favor of Uber and remanded the case for entry of an order to submit the user’s claims to arbitration.
In finding that a valid agreement to arbitrate had been formed, the SJC made two essential findings. First, based on the totality of the circumstances, the SJC held that the user of Uber’s ride-share application had reasonable notice of the terms of the clickwrap terms-of-use contract where the smartphone phone interface had a blocking pop-up screen that prevented the user from ordering a ride without first interacting with the interface in the manner noted below, the interface was focused and uncluttered, the interface referenced terms of use several times, the interface encouraged the user to review the terms in full, the hyperlink to the terms of use was clearly and prominently displayed, and the interface alerted the user that a contract was being formed by means of a large graphic.
Second, the SJC held that the user reasonably manifested his assent to the terms of the contract where, before he could proceed to order a ride, he was required to check a box immediately next to text stating, “By checking the box, I have reviewed and agree to the Terms of Use,” and then he was required to activate a button labeled, “Confirm.”
The SJC’s decision is fact specific. It is not a wholesale blessing of clickwrap agreements, but it does provide illustrative guidance to companies conducting business in Massachusetts that wish to enter into online contracts with customers.