Application of the ADA and Employment Law

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Avoiding Pitfalls in Online Sales to Consumers

by Practical Law Commercial Transactions

Maintained • USA (National/Federal)

A Practice Note discussing the common issues manufacturers and retailers face when selling goods and services online to consumers. This Note describes steps prospective sellers can take to identify and limit common issues in online sales to consumers, including the avoidance of pitfalls in online contract formation, pricing and payment terms, shipping and handling , warranties, waivers, telemarketing, New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA), and the Americans with Disabilities Act (ADA).

Contents

Governing Terms

Binding Consumer to the Terms

Consumer Review Fairness Act

Proper Notice of Terms and Conditions

Clickwrap or Scrollwrap Terms

Warranties

Manufacturer Versus Retailer Warranty

Pre-Sale Availability and Disclosure Rules

Binding Arbitration, Waiver of Jury Trial, and Class Action Waiver

Consumer’s Right to Opt Out

Pitfalls in Payment and Pricing Terms

Pitfalls in Shipping and Handling Terms

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Increasing Claims of Excessive Shipping and Handling Fees in California

Collecting Phone Numbers to Contact Consumers

New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act

New Jersey Supreme Court Holds Plaintiffs Must Suffer Actual Harm

TCCWNA Compliance

Americans with Disabilities Act

Web Content Accessibility Guidelines 2.0 and 2.1

Periodic Review of Governing Terms

As online sales of goods and services continue to erode in-store sales, more businesses are moving to establish an online presence. The growing number of online sales has also made for a rapidly changing legal environment. This Practice Note offers guidance on prevalent issues manufacturers and retailers face when selling online.

Governing Terms

A seller who is preparing to launch an online store should have terms in place on its website that reflect its actual practices, including:

• Website terms of use. Terms of website use govern the general use and access of a website. The terms do not

necessarily involve the purchase of goods and services. These terms are often designed to protect the website owner, content on the site, and its service provider from potential liability to site users by:

• prohibiting unauthorized reproduction of material contained on the site; and

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• ensuring the site is not used in ways that may be harmful, including by prohibiting illegal or undesirable user behavior.

• A privacy policy. Online sellers should have a policy in place that governs the collection, storage, use, and disclosure

of personal information, as online sales typically require, at a minimum, the consumer’s:

• name;

• credit card number, expiration date, and security code (which is considered sensitive information);

• billing address; and

• delivery address.

• E-commerce terms. These terms and conditions govern the online sale and purchase of goods and services, including

billing procedures, shipping and handling, and return policies (see Standard Documents, Terms and Conditions for Online Sales by Retailers to Consumers and Terms and Conditions for Online Sales By Manufacturers to Consumers).

Although it is important for online sellers to provide website terms of use and a privacy policy, this Practice Note focuses on issues that arise regarding e-commerce terms, specific to the sale of goods and services online. For more information on general website terms and privacy policies, see Standard Documents, Website Terms of Use and Website Privacy Policy: Drafting Note: Website Privacy Policies.

Binding Consumer to the Terms

A seller should clearly communicate the e-commerce terms to consumers who visit and make purchases by the seller’s online store. To ensure that terms are legally binding, they must be implemented in a way that forms an enforceable contract between the site owner and the consumer. To form a contract, the consumer generally must:

• Have actual or constructive notice of the terms.

• Affirmatively or impliedly assent to the terms.

Because online sales are generally interpreted as unilateral contracts, courts often look to evidence of mutual assent in determining their enforceability. Without the opportunity to negotiate the terms, courts have sometimes held that, because the consumer lacks the necessary element of mutual assent, e-commerce terms constitute an unenforceable contract of adhesion. In other cases, courts have refused to enforce certain provisions, such as choice of law and choice of forum, because they were deemed to be unconscionable or against public policy. To increase the likelihood that a court does not deem e-commerce terms unenforceable, the seller should provide proper notice and use clickwrap or scrollwrap terms to ensure that the consumer has ample opportunity to manifest acceptance of the terms.

Consumer Review Fairness Act Regardless of the method of notice used, under the Consumer Review Fairness Act of 2016 (CRFA), which was enacted to protect consumers who write honest public reviews of products, services, and business conduct, the company should not include a non-disparagement clause in its terms. The CRFA prohibits companies from including standard contract provisions that threaten or penalize people for posting honest reviews that fall into any of the above categories. Companies cannot use clauses that:

• Bar or restrict a consumer’s ability to review a company’s products, services, or conduct.

• Impose a penalty or fee on a consumer who gives a review.

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• Require consumers to give up their intellectual property rights in the content of their reviews.

For more information on the CRFA, see Practice Note, Consumer Reviews in the Era of Social Media: Consumer Review Fairness Act of 2016.

Proper Notice of Terms and Conditions Online sellers should be able to demonstrate that the purchaser notices or should notice the terms on the site. There are several ways to alert the consumer that the transaction is subject to the terms, including:

• Using prominent and conspicuous language on the site, such as all caps or boldface type.

• Clearly labeling the terms while avoiding vague language, such as labeling them “Terms of Use,” “Terms of Sale,” or “Terms of Use and Sale.”

• Placing the terms in a box the user must scroll through before the user can proceed.

• Informing the user that the site is governed by the terms, which are then presented to the user in the form of a hyperlink, which the user must click before they can enter the site.

For more information on providing notice of terms, see Standard Document, Terms and Conditions for Online Sales by Manufacturers to Consumers: Drafting Note: Online Contract Formation.

Clickwrap or Scrollwrap Terms Online sellers should use clickwrap or scrollwrap terms to display their website terms of use, privacy policy, and e-commerce terms and conditions. Clickwrap and scrollwrap terms should be used as opposed to browser terms, because both provide added measures that have been interpreted by the courts to increase the likelihood of their enforceability.

Browser Terms Unlike clickwrap and scrollwrap terms, browser terms do not require an affirmative action by the consumer. A user instead is informed that, by simply using the website, he is agreeing to be bound to the terms. Courts have held browser terms unenforceable, reasoning that the consumer did not have actual or constructive notice of the terms and therefore could not have assented to them.

Clickwrap Terms Unlike browser terms, clickwrap terms require the user to perform an affirmative action before being granted access to the site or the ability to make an online purchase. Also referred to as click-through terms, clickwrap terms:

• Require consumers to click an “I Accept” or “I Agree” button or check a box following language indicating they have read and agree to the terms.

• Are in close proximity to the “I Accept” or “I Agree” button, such as on the same webpage or in the same pop-up window.

• Should not allow consumers to access the website or place an order until after they click the button or check the box (if using a checkbox, it should not be pre-checked).

Courts have generally found that manifesting assent by using clickwrap terms creates an enforceable contact because they require an affirmative action by the consumer.

Scrollwrap Terms

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Scrollwrap terms are clickwrap terms that also require the user to physically scroll to the bottom of the terms to find the “I Accept” or “I Agree” button. Courts have generally found that this adds another layer of protection, by ensuring that the user has had reasonable notice of the terms, allowing the user to assent to the terms, creating an agreement that is even more likely to be enforceable. The main reason online sellers choose not to use scrollwrap terms is inconvenience. An online seller should weigh the effect the use of scrollwrap terms may have on traffic to their website and sales against the added protect ion scrollwrap terms provide.

Warranties

The Magnuson-Moss Warranty-Federal Trade Commission Act (Magnuson-Moss Act) (15 U.S.C. §§ 2301 to 2312) governs written warranties on consumer goods. It does not require manufacturers or sellers to offer written warranties on consum er goods. However, many choose to provide written warranties to give consumers confidence in buying their products or services. The Magnuson-Moss Act only applies when a business has decided to provide a warranty on a consumer product (see Practice Note, The Magnuson-Moss Warranty Act for Consumer Goods). The E-Warranty Act of 2015 (E-Warranty Act) (PL 114-51) amended the Magnuson-Moss Act to:

• Allow warrantors to satisfy the written warranty requirements by making their written warranties accessible in a digital format on the manufacturer’s websites.

• Require that a manufacturer that chooses the website-warranty option to display on the product, packaging, or manual:

• the full website address where the warranty terms can be obtained; and

• a reasonable means of contacting the manufacturer to obtain and review the warranty’s terms, such as the manufacturer’s phone number or mailing address.

Manufacturer Versus Retailer Warranty Online manufacturers and retailers often include written warranties within their e-commerce terms. A retailer who sells a third-party manufacturer’s products on its website generally provides different terms.

Retailers Although online retailers may choose to offer a warranty, they instead frequently choose to merely pass along the manufacturer’s warranty obligations to the consumer, disclaiming any warranties regarding the manufacturer’s product, service, or manufacture (for an example, see Standard Document, Terms and Conditions for Online Sales by Retailers to Consumers: Section 6).

Manufacturers If a manufacturer that sells its own products on its website, though not obligated to offer a written warranty, chooses to provide a warranty, it must comply with:

• The Magnuson-Moss Act.

• Federal Trade Commission (FTC) regulations under the Magnuson-Moss Act regarding:

• the disclosure of written consumer product warranty terms and conditions (16 C.F.R. §§ 701.1 to 701.4);

• the pre-sale availability of written warranty terms (16 C.F.R. §§ 702.1 to 702.3); and

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• informal dispute settlement procedures (16 C.F.R. §§ 703.1 to 703.8).

• Applicable state laws.

The federal rules also generally prohibit warrantors from:

• Disclaiming or modifying implied warranties (see Standard Document, Terms and Conditions for Online Sales by Manufacturers to Consumers: Drafting Note: Implied Warranties).

• Using deceptive warranty terms.

• Using tie-in sales provisions (see Practice Note, The Magnuson-Moss Warranty Act for Consumer Goods: Using “Tie-In Sales” Provisions).

If a manufacturer or seller has decided to include a warranty, it must then decide whether to offer a full or limited warranty. Written warranties on consumer goods that cost more than $10 must be titled either “Full Warranty” or “Limited Warranty.” The warranty title should be featured clearly and conspicuously at the top of the warranty. A warranty is considered a limited warranty if it does not meet all the federal minimum standards for a full warranty under the Magnuson-Moss Act. A full warranty is one that:

• Provides warranty service to any consumer who owns the product during the warranty period (and is not limited to the first purchaser).

• Remedies product defects and malfunctions within a reasonable time and free of charge.

• Does not impose any limitations on the duration of any implied warranties.

• Allows the consumer to receive a refund or free replacement if the product is still defective after the manufacturer has made a reasonable number of attempts to fix it.

• Does not impose any duty on the consumer as a precondition for using the warranty, other than the duty to notify the manufacturer of the defect.

(15 U.S.C. § 2304.) To learn more about the differences in limited and full warranties, see Standard Documents, Limited Consumer Product Warranty and Full Consumer Product Warranty.

Pre-Sale Availability and Disclosure Rules Written warranties on consumer products that cost more than $15 must be easy to read and clearly and conspicuously disclose certain information. The E-Warranty Act changed the FTC’s rules on:

• Pre-sale availability of written warranty terms (the Pre-Sale Availability Rule) (16 C.F.R. §§ 702.1 to 702.3).

• Disclosure of written consumer product warranty terms and conditions (the Disclosure Rule) (16 C.F.R. §§ 701.1 to 701.4).

Pre-Sale Availability Rule The Pre-Sale Availability Rule requires a warrantor to make its warranty available to consumers before they purchase the covered goods. As amended by the E-Warranty Act, the rule gives online sellers the option of providing warranty terms exclusively in an accessible digital format on the warrantor’s website, provided that the warrantor also:

• Informs consumers of how to obtain warranty terms in a clear and conspicuous manner on the product, its packaging, or its manual, including:

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• the website address where the warranty terms can be reviewed; and

• the phone number, postal address, or other non-digital means for consumers to request a copy of the warranty terms.

• Provides a hard copy of the warranty terms promptly and free of charge on request by the consumer.

• Ensures warranty terms posted online are clear, are conspicuous, and remain accessible to consumers.

• Sufficiently informs consumers of the warranty terms in a way that allows the consumer to readily identify the terms that apply to the specific warranted product.

(16 C.F.R. § 702.3.)

Disclosure Rule Before the E-Warranty Act, the Disclosure Rule required warrantors to disclose any limitation on the duration of implied warranties on the face of the warranty. The E-Warranty Act revised the definition of “on the face of the warranty” to include an option for a warranty posted online. The new rule allows “on the face of the warranty” to mean:

• On the first page of the warranty (where the warranty text begins), if the warranty is printed on one or more sheets of paper or one or more sides of a single sheet of paper.

• On the page that the warranty text begins on, if the warranty is printed as part of a larger document, such as a use and care manual.

• In close proximity to the location where the warranty text begins, if the warranty is on a website or otherwise displayed electronically.

(16 C.F.R. § 701.1.)

Binding Arbitration, Waiver of Jury Trial, and Class Action Waiver

The Magnuson-Moss Act encourages fair and quick consumer complaint settlements outside of court. Federal law allows warrantors to set up informal alternative dispute resolution mechanisms as part of their warranties. The alternative dispute mechanism must comply with several requirements (see Practice Note, The Magnuson-Moss Warranty Act for Consumer Goods: Alternative Dispute Resolution Mechanisms). Once a warrantor has established a dispute resolution mechanism that complies with the requirements, consumers must first use that mechanism before they can sue the warrantor for damages under the Magnuson-Moss Act.

Consumer’s Right to Opt Out A court may find an arbitration clause unconscionable if it does not offer the consumer party (or the party with less bargaining power) the right to opt out of the arbitration provision. Unconscionability is a recurring theme in disputes over class arbitration waivers in consumer contracts, where the contracts are not negotiated at arm’s length and may be contracts of adhesion (see Standard Document, Terms and Conditions for Online Sales by Retailers to Consumers: Section 12(c) and Standard Clause, Class Arbitration Waiver (US): Right to Opt Out).

Pitfalls in Payment and Pricing Terms

Established consumer protection principles require that advertisements of price not be false or deceptive. Sellers should inform their customers of certain terms that may affect the price of the goods, including:

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• That the prices displayed on their site may differ from those offered by the retailer elsewhere, such as in a physical store.

• That the price of the product:

• will be the price in effect at the time the order is placed; and

• does not include taxes or charges for shipping and handling.

• That price increases only apply to orders placed after price changes.

• That promotions may be offered that affect product pricing and are governed by separate terms (for more information on promotion terms and conditions, see Practice Note, Sales Promotions, Contests, and Sweepstakes and Using “Free” in Advertisements Checklist).

• Definitions for terms the seller uses to communicate price, such as for “Sale” and “Clearance” items (see Standard Document, Terms and Conditions for Online Sales by Retailers to Consumers: Section 3(b)).

Seller should also reserve the right to change payment terms in its sole discretion (see Standard Document, Terms and Conditions for Online Sales by Retailers to Consumers: Section 3(d)).

Pitfalls in Shipping and Handling Terms

Online sellers often provide several shipping methods, including next-day and second-day delivery, as well as slower options, such as ground shipping. Sellers sometimes offer free shipping as a promotion or incentive to buy:

• A more expensive product.

• Additional products to reach a specified minimum order of size.

The seller’s shipping terms should address whether the seller or consumer bears the risk of loss during transit. Although it is more advantageous for the seller to impose the risk on the consumer, many companies choose to bear this risk as a way to better compete with sellers that have less favorable terms. The seller’s terms should specify whether the seller:

• Imposes the risk on the consumer by specifying that risk of loss passes when the products are delivered to the carrier.

• Bears the risk by stating the risk of loss passes only on delivery.

Increasing Claims of Excessive Shipping and Handling Fees in California Sellers should be aware of a rise in class actions for alleged violations of California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA). There has been a rise in putative class action lawsuits that allege sellers have violated the UCL and CLRA by charging shipping and handling fees that exceed the cost of shipping through the postal service. The plaintiffs in these cases seek refunds of all shipping and handling charges above the sellers’ actual shipping costs. Online sellers are often subject to the jurisdiction of multiple states, many of which have similar statutes in place, and should take proactive measures to limit the potential for similar suits to be filed against them. To avoid liability, sellers should:

• Ensure that the shipping terms are labeled as shipping and handling or shipping and processing, as opposed to just shipping, as this fee often includes the cost of:

• labor;

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• packaging;

• warehousing;

• insurance;

• returns;

• call and distribution centers; and

• overhead and inventory costs.

• Not state that their shipping and handling rates constitute, reflect, or are reasonably related to the actual costs of shipping.

• Provide clear and conspicuous disclosures of their shipping and handling fees following a placed order but before final purchase, including descriptions of:

• the fee amounts;

• the speed of delivery;

• the identity of the common carrier; and

• any other relevant aspects of each shipping option.

• Review and compare the seller’s actual shipping and handling costs compared to what consumers are charged, to determine whether the current rates are reasonable.

• If the seller operates multiple sites, make sure shipping and handling fees are consistent.

Collecting Phone Numbers to Contact Consumers

The Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227) regulates telemarketing and informational calls, texts, and faxes to consumers and businesses to protect their privacy. The Telemarketing Sales Rule (TSR) prohibits telemarketers from calling telephone subscribers that have expressed a desire not to be called. If the seller is collecting phone numbers to con tact consumers, it should ensure that its policy complies with the TCPA and TSR. The TCPA restricts calls to landlines, calls and texts to wireless numbers, and fax transmissions to both residential and business fax machines, based on the content of the call and the equipment used to initiate the call. For more information on the TCPA, see Practice Note, Telephone Consumer Protection Act (TCPA): Overview. The TCPA and TSR prohibit sellers from calling consumers who have indicated a desire not to receive telemarketing calls. Both prohibit telemarketers from initiating phone calls to any telephone:

• Customer that has requested to not receive telemarketing phone calls on behalf of the seller.

• Number that is registered on the National Do Not Call Registry.

For more information on the TSR, see Article, Understanding Federal Telemarketing Regulations.

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New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act

Businesses that sell products or services to consumers in New Jersey should take note of the recent increase in class action lawsuits filed under New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA) (N.J.S.A. 56:12-14 to 56:12-18). This law affects:

• Businesses that have physical operations in New Jersey.

• All businesses (in-state and out-of-state) that engage in e-commerce with New Jersey consumers.

The TCCWNA was enacted to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms and warranties. The law prohibits parties from including in a written consumer warranty or notice or requiring a signature of any term that:

• Violates any clearly established state or federal legal:

• right of a consumer; or

• responsibility of a seller, lessor, creditor, lender, or bailee.

• Waives the consumer’s rights under the TCCWNA.

• Broadly states that any of the contract’s provisions is or may be void, unenforceable, or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable, or inapplicable in New Jersey (that is, blanket savings clauses). This prohibition against blanket savings clauses does not apply to written warranties.

For example, a contract could violate the TCCWNA if it has provisions that:

• Waive a consumer’s right to attorney’s fees or require the consumer to split litigation costs.

• Limit a business’s liability for personal injury to property or damage that occurs on its premises.

• Require a consumer to indemnify a business against losses that occur due to its own negligence or recklessness.

If a party violates the TCCWNA, it is liable to each aggrieved consumer for a civil penalty of at least $100.

New Jersey Supreme Court Holds Plaintiffs Must Suffer Actual Harm On April 16, 2018, the New Jersey Supreme Court issued a decision stating that plaintiffs must suffer a monetary or other harm that comes as a result of the defendant’s conduct to qualify as an “aggrieved consumer” under the TCCWNA (Spade v. Select Comfort Corp., No. 078611, (N.J. Apr. 16, 2018)). Prior to this decision some courts had held that is was possible for an agreement to violate the TCCWNA even if the plaintiff had not suffered any actual damages, because it was possible for a TCCWNA violation to arise simply from the language in a contract (Martinez-Santiago v. Pub. Storage, 312 F.R.D. 380, 392 (D. N.J. 2015)). The NJ Supreme Court’s decision in Spade came after several opinions that indicated the courts were pulling back from the

broad interpretation of the TCCWNA, including:

• Spokeo, Inc. v. Robins, where the US Supreme Court held that a plaintiff cannot adequately allege a concrete harm, as

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required by Article III standing to sue, by alleging a bare procedural violation (136 S. Ct. 1540 (2016)).

• Hite v. Lush Internet Inc., where the district court granted the defendant’s motion to dismiss, finding that the plaintiff was not aggrieved for the TCCWNA, because the plaintiff:

• had never seen or read the terms of use;

• had not accepted them even if she had seen them; and

• still would have lacked the statutory standing, even if she had accepted them, because she had not alleged that the purportedly improper language had actually violated her rights.

• (244 F. Supp. 3d 444 (D.N.J. 2017).)

• Rubin v. J. Crew Group, Inc., where the district court dismissed the case due to lack of standing under Article III, holding that a plaintiff cannot base a complaint solely on allegations of wrongdoing predicated on TCCWNA violations without including an underlying concrete harm (similar to Spokeo) (2017 WL 1170854 (D. N.J. Mar. 29, 2017)).

The New Jersey Supreme Court’s decision in Spade solidified this pull back. Plaintiffs are now required to show actual harm to

bring a TCCWNA suit. Requiring plaintiffs to show actual harm will prevent consumers who visit websites, therefore becoming subject to the company’s online terms, that violate the TCCWNA, but who do not suffer any other harm other than being subject to these terms, from being able to bring class action suits. This should have a chilling effect on the recent increas e in TCCWNA class actions. However, the court made clear that the harm alleged by a consumer need not be monetary. Therefore although the possibility of class action litigation has been minimized it has not been outright eliminated. Considering companies that offer written contractual terms to consumers in New Jersey (either in person, online, or through a mobile platform) still face potential liability, counsel should still periodically review their terms to ensure they do not violate the TCCWNA.

TCCWNA Compliance Given the rise in litigation and current uncertainty surrounding the TCCWNA, businesses that offer written contractual terms to consumers in New Jersey (either in person, online, or through a mobile platform) should carefully review those terms to ensure that they do not violate the TCCWNA. Counsel should also pay close attention to the NJ Supreme Court as further related developments are expected.

Americans with Disabilities Act

Counsel should be aware of the uptick in lawsuits alleging that companies have violated Title III of the Americans with Disabilities Act (ADA) by not making their websites or mobile applications accessible to persons with disabilities. The ADA is

silent on internet use, and while the Department of Justice (DOJ) previously issued an advance notice of proposed rulemaking to issue regulation on the issue, it officially withdrew that notice on December 26, 2017 (82 Fed Reg. 60932). However, recent court decisions and DOJ settlements take the position that:

• ADA principles apply to websites and mobile applications.

• ADA compliance requires companies to meet privately developed industry standards.

(Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575 (D. Vt. 2015) and Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1346 (S.D. Fla. 2017)) Therefore websites must be accessible to the disabled on desktop computers, laptops, tablets, smart phones, and other

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devices. A failure to comply can result in an order to improve accessibility and the obligation to pay the plaintiff’s at torney fees, costs, and expenses. For an example of a court’s interpretation of the ADA as it applies to a company’s website, see Legal Update, Southern District of Florida Holds Winn-Dixie’s Website Is Subject to the ADA. Without any regulations issued, the courts are split on several related issues, including whether a website qualifies as a pl ace of public accommodation even though the company only operates online and does not have traditional brick and mortar locations. For more information on the circuit court split, see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance: Title III ADA Litigation.

Web Content Accessibility Guidelines 2.0 and 2.1 In the absence of formal regulations, courts and regulators have cited the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), a set of regulations by the World Wide Web Consortium (W3C), as the standard for ADA compliance. To avoid potential liability, sellers should construct or redesign their websites to comply with this standard, keeping in mind that courts and regulators will likely begin adopting WCAG 2.1 over time. Examples of WCAG 2.0 requirements include:

• Providing text alternatives for non-text content (such as large print, braille, speech, and symbols).

• Providing alternatives for time-based media (such as captions for pre-recorded and live audio content and audio descriptions for pre-recorded video content).

• Including a bypass mechanism at the top of each page that allows people who use screen readers to bypass the row of navigation links and start at the webpage content.

• Wording links in a way that they can be understood out of context.

• Ensuring that content can be interpreted reliably by assistive technologies without crashing.

• Offering an alternative to the website until compliance with WCAG 2.0 has been achieved (such as 24/7 toll-free phone access with live agents).

Counsel for seller should consult WCAG 2.0 for an exhaustive list of standards and also monitor the courts to keep up with further developments. For more information on WCAG 2.0, see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance: WCAG 2.0 Compliance.

WCAG 2.1 On June 5, 2018, the W3C published WCAG 2.1, which updates the existing WCAG 2.0, and is intended to provide a better overall web experience for users with:

• Cognitive or learning disabilities.

• Low vision.

• Disabilities using mobile devices.

The 2.1 update builds on WCAG 2.0, retaining its requirements, structure, and framework while adding new citeria for companies to use to establish conformance. WCAG 2.1 states that:

• Content that conforms to WCAG 2.1 also conforms to WCAG 2.0.

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• For policies requiring conformance to WCAG 2.0, WCAG 2.1 provides an alternative means of conformance.

• WCAG 2.1 is not intended to replace or supersede WCAG 2.0.

• WCAG 2.0 remains a W3C recommendation, but the W3C advises the use of WCAG 2.1 to maximize future applicability of accessibility efforts

In accordance with W3C’s guidance, companies in compliance with WCAG 2.0 should maintain their current standards while working to incorporate the newly added criteria, including:

• Requiring the purpose of input fields requesting personal information to be identifiable by assistive technologies.

• Ensuring individuals with disabilities who choose to override spacing can read page text.

• Allowing individuals with disabilities to turn off or remap keyboard shortcuts using a non-printable keyboard character (Shift, Ctrl, Atl, etc.).

It is expected that courts and regulators will begin citing to WCAG 2.1 as the standard for ADA compliance for websites. Fore more information on WCAG 2.1, see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance: WCAG 2.1.

Periodic Review of Governing Terms

Sellers should ensure that their terms are regularly reviewed by counsel. Governing terms may need to be updated to:

• Comply with changes to applicable law, as regulators and the courts continue to deal with the increasing popularity of e-commerce.

• Continue to accurately reflect sellers’ actual business practices, which may change periodically.

Sellers should also include how their terms will be updated and the notice or lack thereof that will be provided to the consumer. Traditional contract principles require that amendment of a unilateral contract be supported by:

• Notice.

• Assent.

• Consideration.

For terms of sale, sellers should at least notify the consumer that:

• Their terms are subject to change.

• Each updated version of their terms will reference a “Last Updated Date” to clearly indicate to the consumer which version is in effect and applies to the subsequent purchase.

• The consumer is responsible for and should check to see the latest version of the terms before ordering a product or service from their site.

For an example, see Standard Document, Terms and Conditions for Online Sales by Retailers to Consumers: Section 1.