• Screen 1 provided information about the rates of memberships and discounts and a text field for an email address with a “Continue” button below. In smaller gray font was language stating, “By clicking Sign up with Facebook or ‘Continue,’ I agree to the Terms of Use and Privacy Policy.” • Clicking “Continue” directed users to Screen 2 , which contained the same text on the left side on the screen. But the right side of the screen differed, now asking “What’s your name?” and including a text-prompt for “First name” and “Last name.” Below that, language stating, “By signing up you agree to our Terms of Use and Privacy Policy” and below that a clickable box reading “Continue.” • Clicking “Continue” directed users to Screen 3 . The left of the screen no longer had promotional information, but instead read “INCLUDED IN YOUR OFFER” with the terms of the membership, including costs, cancellation, and credits for classes displayed below. The right side of the screen prompted users for billing information and below that a statement, “I agree to the Terms of Use and Privacy Policy.” There was no “Continue” button, but instead a clickable “Redeem now” button. The Court recognized there was no bright-line test for what design elements would be satisfactory in every circumstance and considered the overall design of the screens, focusing on which visual elements would draw the user’s attention. • The Court concluded that the design and language of Screen 1 did not provide conspicuous notice of the Terms of Use. It said users would likely continue without reading the language indicating they agreed to the Terms. • The Court also found that the notice language on Screen 2 was ambiguous. The language read, “by signing up, you agree to our Terms of Use and Privacy Policy,” but there was no sign-up button, rather just a “Continue” button. • Screen 3 was also ambiguous, the Court said. It contained language that, “I agree to the Terms of Use and Privacy Policy,” but the clickable action that followed was a “Redeem now” button.
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