A new ruling in King v. Bon Charge offers an important reminder for ecommerce businesses: simply placing Terms & Conditions on a website may not be enough to make them enforceable.

We previously covered King v. Bon Charge in connection with TCPA “quiet hours” litigation, where the court allowed the plaintiff’s Do-Not-Call Registry claim to proceed while dismissing other claims. The case has now produced a separate ruling with implications well beyond the TCPA. 

On August 31, 2026, the U.S. District Court for the District of Delaware dismissed Bon Charge’s breach-of-contract and indemnification counterclaims because the company had not adequately alleged that the plaintiff agreed to its website Terms & Conditions. The court gave Bon Charge leave to amend its counterclaim.

For ecommerce businesses that rely on online terms for arbitration provisions, class-action waivers, consent language, indemnification clauses and other contractual protections, the ruling highlights a practical point: visibility is not necessarily the same as assent.

How the Dispute Reached This Point

Bon Charge is an online seller of wellness products. According to the company’s counterclaim, plaintiff Phyllis King visited its website in 2021 and entered her phone number into a subscriber link. She subsequently received SMS messages from Bon Charge and later filed a putative TCPA class action.

Bon Charge responded with counterclaims based on its website Terms & Conditions. The company alleged that those terms were visible to prospective subscribers before they signed up and that King entered into a contract by providing her phone number. The terms allegedly included a “Duty to Notify and Indemnify,” which Bon Charge argued King breached by failing to notify the company that she no longer wanted to receive messages.

King moved to dismiss those counterclaims.

The Court: “Visible” Is Not Enough

The central issue was whether Bon Charge had adequately alleged that King assented to the Terms & Conditions.

The court explained that contract formation requires mutual assent. In the context of website terms, a user may sometimes be bound even without clicking an express “I agree” button, but only when the user had actual notice or sufficient inquiry notice of the terms.

Bon Charge alleged that its terms were “visible” before a prospective subscriber signed up. But the court found that allegation insufficient. It noted that Bon Charge had not alleged that King actually saw the terms, nor had it provided enough factual detail to show that the terms were presented conspicuously enough to put her on inquiry notice.

The court therefore dismissed the breach-of-contract and indemnification counterclaims, but importantly, it did so with leave to amend. The ruling does not establish that Bon Charge’s terms are unenforceable as a matter of law. Rather, the court found that the company had not yet alleged enough facts to show that a contract was formed.

Bon Charge has until Monday, September 21, 2026, at noon to amend its pleading.

Why This Matters for Ecommerce Businesses

Although King v. Bon Charge began as a TCPA case, this portion of the dispute raises a much broader ecommerce issue.

Online businesses routinely rely on Terms & Conditions to define their relationship with customers and website visitors. Those terms may contain provisions governing arbitration, class-action waivers, subscription terms, dispute resolution, consent, indemnification and other important protections.

But those protections are only useful if the business can establish that the customer actually agreed to them.

The court’s opinion points to several details that may matter when evaluating whether a website user was adequately placed on notice, including:

• where the link to the terms appears in relation to the field or button the customer uses;
• how the terms are labeled;
• whether the link is sufficiently conspicuous;
• what information surrounds the terms; and
• what action the customer must take to complete the transaction or subscription.

These are not merely technical design questions. They can directly affect whether a business can enforce contractual protections later.

The decision also reflects the distinction courts often draw between stronger forms of online assent—such as requiring a user to affirmatively agree to terms—and passive “browsewrap” arrangements in which terms are simply available somewhere on a website. Courts generally scrutinize passive arrangements more closely because the business must still show that the user had adequate notice of the terms.

The EIA has previously covered cases showing the value of enforceable arbitration provisions in TCPA disputes. In VonDeylen v. Aptive Environmental, the Eighth Circuit required TCPA claims to proceed in arbitration based on a prior customer agreement. That decision showed how contractual protections can help businesses manage litigation risk. King v. Bon Charge highlights the other side of that equation: those protections depend on being able to establish that the customer was given adequate notice of the terms and actually assented to them.

What’s Next

Because Bon Charge has been given an opportunity to amend until Monday, September 21, 2026, at noon, this issue is not finished.

The company may be able to provide additional factual allegations showing how its Terms & Conditions appeared on the website, how prominently they were displayed, and whether King had sufficient notice before submitting her phone number. The court could then have another opportunity to evaluate whether those allegations are enough to establish assent.

For ecommerce businesses, the immediate takeaway is that businesses should not assume that simply posting terms somewhere on a site guarantees enforceability.

Businesses that rely heavily on online Terms & Conditions should consider reviewing how those terms are presented to users, whether the relationship between the terms and the relevant button or form is clear, and whether the customer takes an affirmative action that can later be shown as evidence of agreement.

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Ecommerce Innovation Alliance provides members with analysis of litigation and regulatory developments affecting online commerce and digital marketing. This post is for informational purposes only and does not constitute legal advice. Members with questions about their specific practices should consult counsel.