Almost everyone involved in e-commerce will have had the frequent experience of ticking a box to indicate agreement to a seller’s contractual terms and conditions (T&Cs). As a head-turning High Court ruling made plain, such clauses are likely to be legally binding – even on those who have not bothered to read them.
The director of a technology company filled in an online application form by which the company sought to become a client of a foreign exchange services business. In doing so, he ticked a box indicating the client’s assent to the relationship being governed by the FX provider’s T&Cs.
Just above the box was a hyperlink that enabled the director to download the T&Cs, which ran to 15 pages and 27 clauses. Below the box, there was a further link to a webpage containing a PDF of the T&Cs. However, the director testified that he made no use of either link and thus did not read the T&Cs at the time.
After a dispute developed, the client, an overseas company, launched proceedings against the FX provider in Belgium. The FX provider, however, pointed to clauses in the T&Cs which stated in terms that English law would apply to any disputes arising from the relationship and that the courts of England and Wales would have exclusive jurisdiction to resolve them. In reliance on those terms, the FX provider sought an anti-suit injunction forbidding the client from proceeding with its Belgian claim.
Granting the order sought, the Court noted that the director had, by completing the online form, committed the client to contractual obligations involving many millions of euros. It was surprising, to say the least, that he showed no interest at all in the T&Cs, and he self-evidently should have read them prior to ticking the box. He was given sufficient notice of the T&Cs and the Court was satisfied to a high degree of probability that they were binding on the client.