Thornton v. Uber: Failure to Agree to Website Terms and Conditions Makes Arbitration Clause Voidable

Transportation and freight companies should use caution when determining how to administer terms and conditions. Consumer use of online websites and mobile applications is on the rise and has significantly changed how businesses conduct transactions. Today, all it takes is the click of a button to become legally bound to a contract or agreement. As a result, companies that use these technological tools should minimize the possibility of future disputes by explicitly providing terms and conditions to their customers that clearly state what the consumer is agreeing to. One company took a well-intentioned approach that proved costly.

Thornton v. Uber: User Never Agreed to Terms and Conditions

In Thornton v. Uber Technologies, the Georgia Court of Appeals heard a decision appealing an order compelling arbitration. The court originally found that Ryan Thornton, who was murdered by an Uber driver, agreed to arbitration in the terms and conditions of Uber’s phone application. The terms and conditions, including the arbitration agreement, are located at the very bottom of the phone application and the company website in a “browse wrap agreement,” an agreement that does not require any overt action of assent by the user.

Ryan’s mother, who appealed the order compelling arbitration, provided evidence showing that Android users experience an on-screen keyboard that blocks the terms and conditions text on the screen when registering for an account. She argued that Ryan had an Android device, arguing that, he never consented to arbitration agreement because it was unviewable during registration.

Uber claimed that even if Ryan did not originally agree to the arbitration provisions, he was legally bound to the terms and conditions through his continued use of their services following an email notifying him of an update. However, the court was unable to verify that Ryan received the email because Uber failed to provide the email address the update was sent to. This created an issue of material fact which resulted in the reversal of the order.

Ensuring Users Receive and Agree to Terms and Conditions

To avoid users arguing that they never received a company’s terms and conditions, companies should use more effective methods to receiving consent to website terms and conditions. These include clickwrap agreements, electronic signatures, or email verifications.

The most effective method to ensure a user has received a copy of a company’s terms and agreements is by using a clickwrap agreement on applications and websites. A clickwrap agreement at the end of terms pages requires that customers actively acknowledge the terms they are agreeing to before receiving services.

Companies should keep in mind that for a clickwrap agreement to be enforceable, users must be required to give active consent by actually clicking an “I agree” button. The clickwrap agreement must also have the terms displayed prominently and be understandable to the average person, and companies must maintain updated records of these agreements.

Electronic signatures can also be used for the same purpose. Companies can simply place an electronic signature block at the end of the terms and agreement page, requiring customers to sign before receiving their services in order to receive physical consent to the terms.

If a company does not use clickwrap agreements or e-signatures, they can include an email verification in the registration process. This helps companies when notifying customers of updates of terms and conditions. When the user verified that their email address is the one linked with the account, companies have confirmation that any updates are received by the user.

Mitchell-Handschuh: Atlanta Attorneys for Transportation and Logistics Companies

An experienced attorney can help ensure that your terms and conditions are clear and enforceable. If you have questions or need advice about existing or needed terms and conditions, contact the experienced transportation and logistics attorneys at Mitchell-Handschuh, who are always ready to provide assistance.

Categories: Litigation