We have all mindlessly tapped on the “I Agree” button after installing a new app on our phones or creating a new account with a service. By doing so, we have agreed to the “terms of use” (or “terms and conditions” or “terms of service” – whichever label is used).

Despite the fact that this simple click is the legal equivalent of physically signing your name on a paper contract, most people rarely (if ever) read these “terms of use”. (In fact, due to this fact and the explosion of websites and apps with lengthy and dense “terms of use”, there are numerous organizations that are trying to help consumers to better understand what they are agreeing to, including “Terms of Service; Didn’t Read”.)

However, courts generally do not accept our failure to read the “terms of use” as an excuse, and enforce these agreements – as long as the we had “reasonable notice”. But this is still an evolving area of law, in part because – as far as the legal world is concerned – this is a fairly new issue, and also because the type and number of services offered via apps and websites continues to expand and evolve. As a result, we occasionally see a surprising court decision that forces lawyers and companies to evaluate their “terms of service” and – in the case discussed below – how those “terms of service” are presented to the user.

Recently, in the case Metter v. Uber Technologies, Inc., the plaintiff sued Uber alleging that Uber improperly assessed a cancellation fee without advising the user ahead of time. The plaintiff filed the lawsuit in the Federal District Court for the Northern District of California, and Uber filed a motion to compel arbitration (rather than litigation in court) based on the mandatory arbitration provision in the company’s “terms of service”. But, in a somewhat surprising ruling, the court denied Uber’s motion, because it concluded that the plaintiff did not have “reasonable notice” of the “terms of service”. The court rejected most of plaintiff’s arguments – including (1) the alert for the “terms of service” was not sufficiently conspicuous, (2) the alert was confusing and does not call out a waiver of jury trial, and (3) the alert was a “browsewrap” agreement (i.e. did not require the user to affirmatively accept) – but agreed with the plaintiff’s fourth argument: a pop-up blocked his view of the terms of service. More specifically, the link to the “terms of service” was at the bottom of the screen, but when the user tapped on the screen to enter his credit card information, the keypad popped up and blocked his view of the link. In other words, the plaintiff would have had to see and click on the link to the “terms of service” before entering his credit card information, because the link was not viewable once the keypad popped up. But the court stated that there was nothing in the process that would lead it to conclude that the user would look at the link or “terms of service” before entering the credit card information. In fact, the court stated that “the keypad obstruction is a fatal defect to the alert’s functioning”. (Pro tip: You never want the court to call anything “fatal” to your case.)

This case is certainly notable, but this ruling should not be overstated. It is not as if the court said that Uber’s “terms of service” or the specific arbitration provision at issue are unenforceable. Rather, the issue was exclusively related to how the “terms of service” were presented (or, more accurately, not presented) to the user.

To me, this case is a reminder of how important it is for lawyers to work in collaboration with the company and the company’s UX/UI teams when creating “terms of use”. As lawyers, our goal is to draft reasonable and enforceable “terms of service” that include all of the necessary protections for the company. But our job does not end there. We also need to educate the company and the company’s UX/UI team on the importance of how the “terms of service” are presented to the users. Because even “perfect” terms can be defeated if not presented in a way that gives the user “reasonable notice”.

This can be a delicate balance, though. You want to ensure users have “reasonable notice” but you do not want the barrier to be too high. For example, you could require that each user to type their full legal name and the words “I Agree” before proceeding. But this might cause a certain percentage of users to walk away, which would result in lost users and revenue. Typically, you want to force users to check a box or click a button that says “I Agree” and include a link to the “terms of service” right next to this box or button. This way, they cannot check the box or click the button without seeing the link. Had Uber done this, they likely would have prevailed in the Metter case.