In Song fi, Inc. v. Google Inc. & YouTube, LLC, the court enforced a forum-selection clause in YouTube’s “Terms of Service,” noting in dictum that the indemnification provision, like other terms in the contract, was not substantively unconscionable. 72 F. Supp. 3d 53, 63 (D.D.C. 2014). Likewise, in Kraft Real Estate Investments, LLC v. Homeaway.com, Inc., the court held enforceable online terms and conditions that included an indemnification provision. Neither case focused on indemnification, however.
It is interesting that a 2012 Department of Justice opinion implicitly acknowledges that online indemnification agreements may be enforceable—even though such clauses would not be enforceable against the United States. See Anti-Deficiency Act Implications of Consent by Gov’t Emps. to Online Terms of Serv. Agreements Containing Open-Ended Indemnification Clauses, 2012 WL 5885535, at *2 (O.L.C. Mar. 27, 2012).
Further guidance can be gleaned from the many cases analyzing other types of significant online provisions, such as forum-selection clauses and mandatory arbitration provisions. Those cases teach that to determine whether an online provision will be enforced, the first step is to ask whether a contract has actually been formed. If the answer is yes, then the question becomes whether the particular provision is vulnerable to defenses such as unconscionability.
Off-line and online, the same fundamental contract principles apply. See, e.g., Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004). However, the question of mutual manifestation of assent—“the essential element of contract formation,” Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 383 (E.D.N.Y. 2015)—is centrally important for courts confronted with online agreements formed outside the more staid world of ink signatures and rustling papers.
For enforceability, online presentation matters. Courts identify two main types of online agreements: (1) “clickwrap” agreements, where the Internet user cannot move forward with the transaction unless he or she affirmatively consents to viewable—but not necessarily viewed—terms and conditions by clicking “I agree” or something similar; and (2) “browsewrap” agreements, where the terms and conditions are typically posted as a hyperlink, and the user need not provide any express manifestation of assent. See, e.g., id. at 394–95; Hines v. Overstock.com, 668 F. Supp. 2d 362, 366–67 (E.D.N.Y. 2009), aff’d, 380 F. App’x 22 (2d Cir. 2010). Courts occasionally articulate other categories of online agreements, such as “scrollwrap,” which “requires users to physically scroll through an internet agreement and click on a separate ‘I agree’ button in order to assent to the terms and conditions of the host website”; and “sign-in-wrap,” which “couples assent to the terms of a website with signing up for use of the site’s services.” Berkson, 97 F. Supp. 3d at 395.
Even when a contract has been formed, the applicable defenses can render an online indemnification provision unenforceable. While an indemnification provision is not unenforceable simply because it is part of an online agreement, some judicial commentary does suggest that the defense of unconscionability may have particular traction in cases that involve such agreements.
Online contracts for the purchase of goods or services are commonly contracts of adhesion. That is, they are presented “on a take-it-or-leave-it basis,” without opportunity to discuss or negotiate terms. See, e.g., Bynum v. Maplebear Inc., 2016 WL 552058, at *7 (E.D.N.Y. Feb. 12, 2016). While not per se unenforceable, contracts of adhesion generally are subject to heightened scrutiny. For example, the court in Berkson sets forth a four-part inquiry for determining the enforceability of electronic contracts of adhesion. The Berkson court also placed on the vendor, “who designed the website and puts into it terms favoring itself,” the burden of impressing on the consumer “the importance of the details of the binding contract being entered into.” 97 F. Supp. 3d at 382, 402–3.
Showing a contract term to be unconscionable generally requires that the contract was both procedurally and substantively unconscionable when made, meaning that there was “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Id. at 391.
The ease with which consumers can enter into online agreements has raised special unconscionability concerns for some judges. A concurrence in Major v. McCallister, which upholds an online forum-selection clause, expresses this concern:
I write this separate opinion to note that the same contract principles hold on the internet. When the consumer is presented with a contract of adhesion containing lengthy provisions and hidden terms, I believe courts should consider whether the process of assent or terms of the contract are unconscionable. Here, the dispute involves a forum-selection clause assented to by Appellant’s use of a free service—terms that are not so onerous as to rise to the level of unconscionability; however, I do not want our opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking “I agree.”
302 S.W.3d 227, 232 (Mo. Ct. App. 2009) (Rahmeyer, J., concurring).
Such a view leaves room for a procedural-unconscionability argument that would be based on the minimal process of assenting to an online contract of adhesion, as well as a substantive-unconscionability argument based on the potentially onerous financial burden associated with an indemnification provision, particularly in the case of an individual consumer. See Lhotka v. Geographic Expeditions, Inc., 181 Cal. App. 4th 816, 825–26, 104 Cal. Rptr. 3d 844, 852–53 (2010) (in non-online case, holding that arbitration clause was substantively unconscionable where, among other things, it required the plaintiffs to indemnify defendant for costs and attorney fees without imposing reciprocal indemnification obligations on the defendant).
In Song fi, Inc. v. Google Inc. & YouTube, LLC, on the other hand, the court held that an online agreement with an indemnification provision was not procedurally unconscionable because the conditions for use of service were neither obscured nor hidden, the plaintiffs had the opportunity to understand the terms, and there was no lack of meaningful choice. 72 F. Supp. 3d 53 (D.D.C. 2014). Further, as the court noted in dictum, the indemnification clause was not substantively unconscionable given that it was not “so outrageously unfair as to shock the judicial conscience.” Id. at 63.