## Facts

- Guillermo Jerez, a Nassau County, New York resident, purchased thousands of pairs of tube socks from defendants through an online ordering process and related emails, paying $7,146 including shipping.
- Jerez alleged the delivered socks were defective and demanded a refund; defendants refused.
- Defendants operated a website selling closeout merchandise nationwide and maintained a “Terms of Sale” page that included a clause requiring disputes to be litigated in Broward County, Florida.
- The Terms of Sale were accessible only through website links (including from an “About Us” page) and were not presented on the order page.
- Jerez was not required to click an “I agree” button or take another affirmative step manifesting assent to the Terms of Sale and asserted he did not see the forum-selection clause.

## Issues

1. Whether an online forum-selection clause located on a linked “Terms of Sale” webpage, without affirmative assent and without conspicuous incorporation into the transaction, became part of the parties’ contract.
2. If not incorporated, whether dismissal for improper forum was warranted based on the purported requirement to sue in Broward County, Florida.

## Decision

- The court denied defendants’ motion to dismiss for improper forum.
- The forum-selection clause was not binding because it was not sufficiently incorporated into the parties’ agreement.
- The action was permitted to proceed in the District Court of Nassau County, New York.

## Legal Principles

- Forum-selection clauses are generally presumptively enforceable, but only if they are part of a binding agreement between the parties.
- In online commerce, contractual terms may be incorporated by reference through mechanisms such as click-through assent, clearly referenced emails, or other methods that provide conspicuous notice and a reasonable opportunity to review the terms.
- Terms presented only through passive, non-mandatory hyperlinks (browsewrap-style presentation) are less likely to bind a buyer absent proof of reasonably conspicuous notice and assent.
- A seller seeking enforcement of an online forum-selection clause bears the burden of showing the clause was adequately communicated and incorporated into the transaction.

## Conclusion

Because the website’s forum-selection clause was not presented in a manner that provided conspicuous notice and did not require affirmative assent or otherwise establish incorporation by reference, it was not part of the parties’ contract; the New York court therefore denied dismissal and retained the case.


Jerez v. JD Closeouts, LLC, 943 N.Y.S.2d 392 (N.Y. Dist. Ct. 2012)