Web Wrap Agreements
Dell Computer Corporation c. Union des consommateurs
2005 QCCA 570
Advertisement of computers at a low price on Dell’s website which proved to be an error.
The Dell Terms of Sale indicated disputes would be settled by arbitration under the Arbitration Rules of the National Arbitration Forum (“NAF”), accessible by hyperlink from Dell’s website.
Under Quebec Civil Code Art. 1435. “An external clause referred to in a contract is binding on the parties. In a consumer contract or a contract of adhesion, however, an external clause is null if, at the timeof formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it.”
The arbitration clause was not enforceable because Dell had not proven that Dumoulin knew of it at thetime of the formation of the contract.
The notice drawing attention to Dell’s standard Terms of Sale was in small print, at the bottom of the page which required at least three ‘clicks’ to reach.
The website did not have a window displaying the arbitration provision, which the user had to accept before making his purchase. The consumer was required to visit the NAF website.
Dell had to demonstrate that at the time of sale the consumer knew of the content of these two
: the arbitration clause and the NAF Arbitration Rules.