A term in contrasting type that is only reached after hyperlinking and then scrolling through three pages of text is unlikely to be noticed. Unavoidability of disclosures as crucial to conspicuousness. In Part II.C.4.a. of the Notice of Request for Public Comment, the Commission expresses the views that disclosures should be unavoidable to be conspicuous and that consumers should not have to take actions such as scrolling or clicking to a link to reach them. This is a sound position. In addition to the problem that contract terms available only by link will often never be viewed, use of clicking as a substitute for a signature is undesirable.
Computer users click hundreds of times a day.
Clicking does not have the same significance to consumers as signing a contract. Importance of Pre-transaction Availability of Disclosures and Terms. It is hard to see how terms can be conspicuous if consumers do not see them until after purchase. In order for a market in warranty terms to work, for example, consumers at a minimum must have access to terms before they make purchase decisions. In recognition of this important point, the Commission requires sellers and warrantors to take various steps to make terms available to consumers.