Dropshipper claiming breach of website terms and conditions

Dear Rich: Long story short, when I filled out an application form on my dropship supplier's website, they had a Terms and Conditions on their website that I never noticed until my supplier accused me of violating it recently. My supplier is now threatening to sue me for breaching this contract that I didn't know about. It's probably my fault that I wasn't more careful when I applied to it, but it's too late now. When I filled out the application online, there was no click-to-agree mechanism. There is also no language that explicitly says I am agreeing to it. There is only a link with somewhat obscure anchor text pointing to the agreement. The text read: "Please read the terms and conditions of our dropship program and email us with any questions." The words "dropship program" were used to link to the T and C page. Looking at it, I was expecting to see more information about the dropship program if I were to click it. How do courts treat these types of non click-to-agree online contracts? Will this likely be treated as a valid contract in court? Or will it fairly easy for a lawyer argue against it? My supplier is in Ohio and my business is in Texas. It all depends. A contract cannot be enforced if the parties never agreed on the material terms. That's why the most effective terms and conditions and end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades and as a general rule, the harder it is to demonstrate that the other party agreed to the terms and conditions, the harder it will be to enforce the agreement. For example, Adobe was able to demonstrate that its software license is enforceable because users had to, at some point in the transaction, consent to the terms. By the way, electronic consents are acceptable under the Electronic Signatures in Global and International Commerce Act which legitimized all electronically entered-into agreements.
So, the best argument the drop shipper could make would be that you checked a box or clicked to accept a link that led to the terms and conditions. But, absent clear proof that you were made aware of the terms and conditions -- and obscure links don't sound like clear proof -- the drop shipper will have a harder time proving that the terms and conditions were part of the agreement. How hard? We can't say for sure and the unfortunate part is that it may take a court to decide. We think you should inform the drop-shipper that you don't believe the terms and conditions are enforceable because you never agreed to them and at the same time, you should look for a way to resolve the problem that is less expensive than hiring a lawyer in Texas.
Note, even if the drop shipper's mechanism for agreement is acceptable, terms and conditions and EULAs will not be enforced if they are unconscionable, a slippery standard that requires a court's intervention. Some such agreements are considered unenforceable based on the presence of forum-selection provisions, clauses that typically require that lawsuits must take place in a specific location. (See this article for information on jurisdiction.) Often these agreements are invalidated as "adhesion contracts."