Companies regularly create internet apps and websites offering employment or goods and services for sale. To make a clean presentation, standard terms and conditions are pushed to a linked file, which the companies assume will be part of the enforceable contracts formed once the “buy,” “shopping cart,” or other mnemonic icon/buttons are clicked. Cases indicate, however, that companies and their attorneys pay insufficient attention to how to move from ink signatures on paper to contract formation on electronic devices. Bread-and-butter forum selection, warranty, choice of law, delivery, payment, complaint, arbitration and other important terms are thus put at risk.

A recent published Appellate Division opinion, Wollen v Gulf Stream Restoration & Cleaning, LLC, __ N.J. Super. __, 2021 N.J. Super. LEXIS 94 (App. Div. July 9, 2021), illustrates the problem, while citing legal principles back to Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), Caspi v. Microsoft Network L.L.C., 323 N.J. Super. 118 (App. Div. 1999), and Hoffman v. Supplements Togo Mgmt., 419 N.J. Super. 596 (App. Div. 2011). As Wollen noted, the principles have been discussed for “decades.” Companies should finally take heed.

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