Question: In the instant case, it is clear that Plainti ff had no actual noti ce of the Terms and Conditi ons of Use. Defendant has

In the instant case, it is clear that Plainti ff had no actual noti ce of the Terms and Conditi ons of Use. Defendant has also failed to showthat the Plainti ff had constructi ve noti ce. The Hawkins Affi davit, upon which Defendant relies, conclusory states that by accessingOverstock's website, an individual accepts Overstock's Terms and Conditi ons but, crucially, does not explain how a site- user such asPlainti ff is made aware of the Terms and Conditi ons. Despite Defendant's asserti on that "all customers to Overstock's website areadvised of the company's terms and conditi ons prior to their entry onto the site," . . . Notably, unlike in other cases where courts haveupheld browsewrap agreements, the noti ce that "Entering this Site will consti tute your acceptance of these Terms and Conditi ons," wasonly available within the Terms and Conditi ons . . . Hines, therefore, lacked noti ce of the Terms and Conditi ons because the website didnot prompt her to review the Terms and Conditi ons and because the link to the Terms and Conditi ons was not prominently displayed soas to provide reasonable noti ce of the Terms and Conditi ons. Very litt le is required to form a contract nowadaysbut this alone doesnot suffi ce

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