In September of 2024, the Court of Appeals for the U.S. Seventh Circuit decided Domer v. Menard – and eventually issued an opinion with new and clarified guidance on clickwraps and hybrid-wraps. That decision gives us a good outline of the steps necessary to create an enforceable online contract.

In Domer, the Seventh Circuit found an online contract enforceable, including its arbitration clause. The contract was not a clickwrap. Its checkout page, in other words, did not require that the customer click a box indicating consent to the contract, in addition to the purchase button.

Rather, the case involved a hybrid-wrap: a contracting system with no click-box but with a contract link relatively close to the purchase button. A hybrid-wrap usually comes with language something like, “By clicking Purchase below, you accept the following terms and conditions: [link].” (Contrast browsewraps, which usually aren’t enforceable. They link the terms at the bottom of the purchase page or even on another page.) Clickwraps are safer but the Domer court’s opinion tells us hybrid-wraps can work too (which we already knew). It also offers insights into improving all online contracting systems.

Two Requirements for an Enforceable Online Contract

The court held that an online contract may be enforced if:

A.     The website provides “reasonably conspicuous notice” of the terms; and

B.     The customer unambiguously manifests assent by completing the purchase.

A. The Five-Factor Test for “Reasonably Conspicuous Notice”

The Domer court held that the defendant’s website did give reasonably conspicuous notice of the contract, based on five factors:

1. 1. Simplicity of the Screen. The court found the defendant’s checkout page “relatively uncluttered,” with plenty of white space, consistent formatting, and few distracting elements. That suggests businesses should ensure that their checkout pages are streamlined, well-spaced, and internally consistent. And they should avoid excessive hyperlinks and promotional content.
   2. Clarity of the Disclosure. The court noted that the checkout page’s contract disclosure explicitly told users: “By submitting your order you accept our Terms of Order.” That effectively warned users (a) to read the terms and (b) that the purchase is subject to those terms. That suggests businesses should include explicit language connecting the user’s action (e.g., clicking Purchase) to acceptance of the terms.
   3. Design of Hyperlinks and Disclosure. The court pointed out that the checkout page’s hyperlinks were offset from the white background in bright green, clearly contrasting with the black text of the disclosure. The disclosure began with bold text (“Please note”), drawing customer attention. That suggests that businesses should make contract links visually distinct, particularly with contrasting colors. They should also make sure to emphasize language addressing the contract – e.g., “By clicking below …,” – through bold text or other formatting techniques.
   4. Spatial Placement of the Disclosure. The court found the checkout page’s disclosure and links were placed right below the billing information box, which a reasonable customer would review. The court also said those disclosures and links were part of the page’s “natural visual flow.” That suggests businesses should put disclosures and links near information customers have to review to complete their purchases, without requiring scrolling to find them.
   5. Temporal Relationship. The court found the checkout page’s disclosure “temporally connected” to the required act: the user’s click. In other words, the user ran into the disclosure on the page where it would place the order. That suggests businesses should make sure users encounter terms at the same time as they take action to complete a purchase. 

B. Manifestation of Assent

The Seventh Circuit also held that clicking “SUBMIT ORDER” demonstrates the necessary unambiguous consent to the terms where:

1. 1. The user has reasonably conspicuous notice of the terms;
   2. The disclosure explicitly connects submitting the order to accepting the terms; and
   3. The spatial and temporal coupling of the terms with the submission button indicates acceptance. 

In other words, the single “submit order” button did the trick, even without a separate box to click (again, as in a clickwrap).

Best Practices for Enforceable Online Agreements

The Domer decision should reassure anyone using a hybrid-wrap. (If you’re using a browsewrap, you’re still in trouble.) But it doesn’t change my preference: use a clickwrap if you possibly can. Both can work, but your odds are better with a clickwrap.

The decision offers guidance for hybrid-wraps and clickwraps.

For Clickwraps

• • Put the checkbox directly above or next to the submit/purchase button (and of course, require a click to proceed).

• • Use clear language like, “I have read and agree to the Terms of Service.”

For Hybrid-wraps

• • Use bold, contrasting text to highlight the existence of terms.

• • Explicitly state that a purchase constitutes acceptance.

• • Put notices next to the buy button or other critical transaction point.

• • Make sure links are visually distinct through color and formatting.

• • Keep the interface clean and uncluttered.

For All Online Agreements

Here are some additional, more random thoughts about making online agreements work:

• • Keep records of when users accept terms and the version in effect.

• • Consider a multi-step confirmation process (e.g., scroll through the contract, then click a box accepting it, then click purchase: a.k.a a scroll-wrap).

• • Regularly review and update implementation.

• • Test user interfaces to make sure notices remain highly visible on all visitor devices.

For more about online contracts, see The Tech Contracts Master Class™, which in particular addresses the similar issue of amending an online form, in course 4.

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Note: This post was a bit of an experiment, since I used gen-AI to write the first draft. It’s still my work; I reviewed the Domer decision and articles on the subject, and then I heavily revised the AI’s work. What’s not clear is whether using the AI actually saved time. More on this in another post …

©ish 2025 …? Use of gen-AI also casts a shadow on my copyright for this article, since a machine can’t generate copyrightable content. Does my heavy editing do the trick, changing the machine-generated content enough to qualify? I don’t know. (Does anyone?) So I haven’t added our usual copyright notice at the bottom. Consider this paragraph a sort of vague, confusing, lame copyright notice.

THIS ARTICLE IS NOT LEGAL ADVICE. IT IS GENERAL IN NATURE AND MAY NOT BE SUFFICIENT FOR A SPECIFIC CONTRACTUAL, TECHNOLOGICAL, OR LEGAL PROBLEM OR DISPUTE, AND IT IS NOT PROVIDED WITH ANY GUARANTEE, WARRANTY, OR REPRESENTATION. LEGAL SITUATIONS VARY, SO BEFORE ACTING ON ANY SUGGESTION IN THIS ARTICLE, YOU SHOULD CONSULT A QUALIFIED ATTORNEY REGARDING YOUR SPECIFIC MATTER OR NEED.