Israeli court says no to forum selection clause in clickwrap agreement, by Omar Tene on the SCIS blog
In a highly important decision, the Tel Aviv District Court annulled this week a forum selection clause in a clickwrap contract, holding the user was not sufficiently aware of the choice of foreign forum nor of the fact he was contracting with a foreign company; and has not clearly consented to such choice.
In Civ. (Tel Aviv) 1963-05-11 Malka v. Ava Financial, .. the court (Judge Ruth Ronen) stated that … [i]n an online setting, a party’s intent to enter into a contract can be established by showing that such party was informed of (i.e., read) the terms of the agreement and actively expressed his consent to be bound by them.
The court held that clickwrap agreements better evidence a consumer’s consent than browsewrap agreements. If clicking on a link is required to view the terms of the contract, such link must be featured prominently for consumers to see.