Pop-ups with updated terms and conditions are more than just routine notifications. They play a critical role in maintaining enforceable contracts. A recent New York Court of Appeals decision, Wu v. Uber Technologies, Inc., combined with a similar decision from Massachusetts’ highest court, Good v. Uber Technologies, Inc, highlights how important these agreements are. These cases place renewed emphasis on how businesses present their digital agreements, particularly “clickwrap” terms, serving as a reminder that enforceability depends on clarity and affirmative consent.
In Wu, Uber’s updated terms of service included a broad arbitration clause requiring disputes to be resolved outside of court. Emily Wu had already filed a personal injury lawsuit against Uber when she accepted the updated terms by checking a box and clicking “confirm” on a pop-up screen. She argued that she did not knowingly agree to arbitrate her pending lawsuit, but the court upheld Uber’s terms, finding the agreement enforceable.
A key factor in the decision was how Uber presented the terms. The updated terms were displayed clearly, with bold, capitalized text highlighting the arbitration clause under a prominent “Arbitration Agreement” heading. The process also required users to take a clear, affirmative action, checking a box and clicking “confirm”, to show their consent. Notably, the court also considered Uber’s email notification sent to users days before the in-app agreement. The email flagged upcoming changes to the arbitration clause and recommended reviewing the new terms. Together, the court deemed these elements provided sufficient notice and ensured the terms were enforceable.
The Good decision echoed similar principles. In that case, the court upheld Uber’s clickwrap process and emphasized the importance of interface design. It noted that businesses must clearly present terms and require deliberate user actions to establish consent. Importantly, Good reinforced that these principles apply to all terms in digital agreements, not just arbitration clauses, and encouraged businesses to consider the entire chain of communication with users, from preemptive notifications to in-app agreements.
While these rulings are not binding nationwide, they are likely to influence how other courts evaluate similar cases. Courts may consider the broader context of how terms are presented, extending beyond the single moment of assent. Businesses should ensure their digital agreements are clear, accessible, and supported by consistent communications. For those operating across multiple states, the Wu and Good decisions serve as valuable benchmarks for best practices in designing and presenting digital agreements. Taking a comprehensive approach to user notifications can make all the difference in ensuring agreements hold up in court.
Businesses relying on digital agreements should take this opportunity to review their processes. Are your terms clear and prominently displayed? Do they require that users take deliberate actions to agree? Small improvements to the clarity and transparency of your terms can protect your business and reduce legal risks. If you have questions or need guidance, our team can help you create agreements that are effective and enforceable.