Defendant essentially argues that it contracted for the right to change the terms at will because the 2011 TOS contains a provision stating that Defendant “may revise these Terms from time to time” and that continuing to use the service constitutes agreement to any revised terms. Defendant’s argument misses the point. Given the complete lack of evidence of notice within Defendant’s service itself, Plaintiff’s ongoing use of the service is irrelevant to determining whether he had actual or constructive notice of the post-2011 terms of service.
The case is Sifuentes v. Dropbox, Inc., 2022 WL 2673080, *4 (N.D. Cal. June 29, 2022).
The court found Dropbox’s evidence of notice unpersuasive. Regarding actual notice, the court found that “there is nothing in the record to suggest that Plaintiff saw or read the email, such as a read receipt reflecting that Plaintiff opened the email.”
Regarding inquiry notice, the court found that the binding terms of the click-wrap agreement, allowing Dropbox to periodically change its terms, did not amount to inquiry notice. The court found that “there is nothing in the record to suggest that Plaintiff could not use the service until he indicated his assent, that he would have been advised of new terms and conditions while using Defendant’s services, or that Defendant ever tracked whether Plaintiff had opened its email.” The court threw considerable water on any argument that the email notices alone would be sufficient notice if the customer continued to use the service: “Even if the email alone could be considered ‘reasonably conspicuous notice,’ Plaintiff took no action to unambiguously manifest his assent.”
The court accordingly denied Dropbox’s motion to compel arbitration.