Sierra Trading Post is an Internet retailer of brand-name outdoor gear, family apparel, footwear, sporting goods. Sierra lists comparison prices on its site to show consumers that its goods are competitively priced.
Both Canadian and US cases have been tolerant of a range of possibilities for a check-out procedure, and the placement of "click-through" terms. This applies equally to e-commerce sites, software licensing, subscription services, or online waivers. Ideally, the terms are made available for the user to read at the point of checkout, and the user or consumer has a clear opportunity to indicate assent to those terms. In some cases, the courts have accepted terms that are linked, where assent is indicated by a check-box.
While there is no specific bright-line test, the idea is to make it as easy as possible for a consumer to know (1) that there are terms and (2) that they are taking a positive step to agree to those terms.
Internet retailers, online service providers, software vendors and anyone imposing terms through click-through contracts should ensure that their check-out process is reviewed: make it as easy as possible for a court to agree that those terms are binding.
Originally Published 21 April, 2020
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