Incorrect.  As the court noted earlier, "an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious.”  In addition, as noted earlier, courts routinely enforce a wide range of provisions of which typical consumers are unaware.  This suggests that it would be sufficient to form a contract if users were aware that they were being invited to enter a contractual relationship and that downloading indicated assent.  The examples which the court discusses next suggest that this is indeed the court’s view. 

 

Back