A contract clause is conspicuous when it is written so that a reasonable person against whom it is to operate should have noticed it. Under the Uniform Commercial Code of many states, a term in a contract is conspicuous if it is presented in a manner “that a reasonable person against which it is to operate ought to have noticed it.” Courts interpreting this definition have looked to see whether the presentation of contract terms include any means to set it, or its heading, apart from the rest of the content displayed, such as difference in color, size, or font.
Online contracts Edit
In the context of online agreements, contract terms have been held to be conspicuous where a blue hyperlink leading to the terms of an agreement appears either throughout an online ordering process or before a sale is confirmed. Some sites choose to satisfy the conspicuous term requirement with a "clickwrap agreement" that requires a user to read and accept the terms before finalizing a sale, or confirm that they have read and understood the terms presented. These types of affirmative acts by the user are not required so long as the contract terms, or the link to such terms, is visible without extra effort on the part of the user. Where a link to contract terms appears at the very bottom of a site, or in an area not required to be visited by a user, courts are likely to find the contract terms unconscionable for lack of notice.