Many businesses include Terms & Conditions of Use on their website and assume that by stating within those Terms & Conditions that they are binding on the user, they actually are binding on the user. Other businesses may be a little more direct, by including a clear link on their home page when the user first arrives. Under at least some circumstances, proceeding in this manner may risk a judicial finding that the Terms & Conditions actually are NOT binding. Specifically, the New Jersey Appellate Division recently held that an arbitration provision was not binding on a website user notwithstanding being included in the Terms & Conditions for the website. The Appellate Division held that the Terms & Conditions, though including the arbitration provision, was not necessarily clear enough for the consumer to be aware, and the consumer had not clearly and affirmatively consented to be bound by the mere inclusion of an arbitration provision within the Terms & Conditions. While this decision did not invalidate such Terms & Conditions, it did make clear that businesses must review their Terms & Conditions to ensure that they are clearly known by their customers, and that their customers clearly assent to the terms themselves (taking into account the type and sophistication of the customer, and the clarity of the website and its Terms & Conditions).
For more information on how to assure that your Terms & Conditions of Use are binding, please contact Michael J. Feldman, Esq. ( or 908-964-2486), Craig D. Bronsnick, Esq. ( or 908-964-2482), or John J. Billiris, Esq. ( or 908-827-2050).
