Enforceability of browsewrap agreements called into question

Posted on September 4, 2009

The United States District Court (Eastern District of New York) released its decision in Hines v. Overstock.com today, which held that a browsewrap agreement that was only available by scrolling to the bottom of the website is not enforceable.

The terms and conditions of Overstock.com, governing all online customer purchases, are contained in a link at the bottom Overstock’s homepage. The notice that “Entering this Site will constitute your acceptance of these Terms and Conditions” was only available within the terms and conditions.

Ms. Hines was not prompted to or advised of the terms and conditions and could not see the link to them without scrolling down to the bottom of the screen, an action that was not necessary to complete her purchase. As a result, the court held that the terms and conditions of Overtock.com’s site were not enforceable.

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