If you’re like us—and most others, we’ll venture to guess—you’ve never read all the terms and conditions of the iTunes end-user license agreement.
We doubt that it’s a scintillating read, but, regardless, most consumers don’t slog through these contractual tomes because they have better things to do.
Apple and others in the world of e-commerce know this, but they need to rely on some form of contract for their services, so the struggle begins to create a binding contract (where a purchaser “receives reasonable notice of those terms”) when the purchaser doesn’t devote the time or attention to reading the essential terms.
The Seventh Circuit’s recent decision in Sgouros v. TransUnion Corp., No. 15-1371 (7th Cir. March 25, 2016), decided under Illinois law, is a cautionary tale for those that operate in this digital realm. The court declined to enforce an arbitration provision because that term was buried at the bottom of a scrollable window (and not immediately visible on the page), with no prompt directing the user to scroll to the bottom. Chief Judge Diane Wood wrote for the court, in an instructive opinion that included screenshots from TransUnion’s webpage.
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