In order to decide if a contract is procedurally unconscionable, courts consider factors such as how the contract was entered into, whether the parties had adequate time to read and understand the contract, and whether important terms in the contract are conspicuous. Under the Uniform Commercial Code of many states, a term in a contract is conspicuous if it is presented in a manner “that a reasonable person against which it is to operate ought to have noticed it.” Courts interpreting this definition have looked to see whether the presentation of contract terms include any means to set it, or its heading, apart from the rest of the content displayed, such as difference in color, size, or font.

Here are some simple steps you can follow to ensure that your contract will be seen by your customers and enforced by the court if a problem does arise:

1. Don’t Hide Your Terms

This step should be fairly obvious but too many website operators choose to bury their terms of service either on unrelated pages that customers are unlikely to visit, or at the very bottom of a page in a small font. No matter what size font you use, if your users have to scroll way down a page to view the terms (and they don\’t have to do the same amount of scrolling to make a purchase) chances are you’re running an unnecessary risk

2. Have Plenty of Links

This step is really a continuation of your efforts NOT to hide the terms of a website. If you have multiple pages required to finalize an order, have a link to the terms on each page, and have each link be visible. This doesn’t mean that your website needs to be plastered with links but one visible link per page should suffice without disrupting the look and feel of your site.

3. Use Blue, Underlined Links

This may sound silly, but courts like consistency and precedent and while you may like the look of a yellow hyperlink for your terms in italic, courts are familiar with standard blue, underlined links. Chances are your customers are familiar with blue links as well so make it as easy as possible for them to recognize the links to your terms by showing them the convention they’re used to.

4. Consider a Clickwrap Agreement

Clickwrap agreements require a user to check a box or push a button signifying that they have seen and read the terms before making a sale. Browsewrap on the other hand, assumes that users have read and agreed to terms because they have been conspicuously posted. While both types of agreements will be enforced under the right conditions, if the organization and structure of your site permits a clickwrap agreement it is always best to have an affirmative action that shows a manifestation of intent to enter into an agreement.

For more information about e-commerce and online contracts visit the WLF Lawyers website: http://www.wlflawyers.com.

A visually impaired gamer has brought a lawsuit against Sony Entertainment claiming violations of the Americans with Disabilities Act (ADA) for failure to make its video games and online video games accessible to differently-abled players. Regardless of the merits of this claim, Sony is seeking the enforcement of an arbitration clause in the Terms of Service of its game to bar this claim from being brought to court. The plaintiff argues that this clause is unenforceable and that his motion for a jury trial should be granted.

Under the Sony Terms of Service all claims against the company by users must be submitted to binding arbitration. A similar clause was challenged for the virtual world Second Life in Bragg v. Linden Research in 2007. A contract clause is generally upheld regardless of whether the parties have had an opportunity to discuss or negotiate the language as long as the clause is not so one-sided as to be oppressive. While not held to be oppressive,the clause in Second Life’s Terms of Service was stricken as unenforceable because while there were other virtual worlds for Bragg to play, the court agreed with him that they were not “reasonable” alternatives.The reason for this determination is that Second Life allows its users to retain intellectual property ownership in their online creations, which at the time was a policy completely unique to Second Life. In the present case the plaintiff did not present an argument that he didn’t have any reesonable alternatives to Sony’s game(s), to the contrary, his complaint lists several games and virtual worlds that offer accommodations similar to the ones he is seeking. For this reason, and because his complaint does not sufficiently allege unenforceability, it is unlikely that the court will grant plaintiff’s motion for a jury trial.