Legal Definitions - conspicuous

In legal contexts, something is considered conspicuous if it is presented in such a clear, prominent, and obvious manner that a reasonable person, against whom it is meant to operate, would undoubtedly notice it. This concept is crucial for ensuring fairness and transparency, especially when dealing with important terms, clauses, or disclaimers within contracts, agreements, or product information. The determination of whether something is conspicuous often depends on factors like the size, style, color, or placement of the text, ensuring that critical information isn't hidden or easily overlooked.

• Example 1: A Car Lease Agreement's Early Termination Penalty

  Imagine a car lease agreement that includes a substantial penalty for early termination. If this specific clause detailing the penalty is printed in a significantly larger font size, bolded, highlighted with a different color, and placed within its own distinct box on the first page of the agreement, it would be considered conspicuous.

  Explanation: The prominent display ensures that a reasonable person reviewing the lease would be highly likely to see and understand this critical financial obligation before signing. This prevents the lessee from later claiming they were unaware of the penalty due to it being "hidden" in fine print.

• Example 2: A Software License's Data Sharing Clause

  When installing new software, the End-User License Agreement (EULA) might contain a clause stating that the software will share anonymous usage data with third-party analytics providers. If, during the installation process, a separate pop-up window appears specifically detailing this data sharing, requiring the user to click "I Agree" to proceed, or if the clause itself is presented in a distinct, easy-to-read section with a prominent heading within the EULA, it would be conspicuous.

  Explanation: By drawing specific attention to the data sharing practice, the software company ensures that users are given clear notice, making it difficult for them to later argue they did not consent to or were unaware of this aspect of the software's operation.

• Example 3: An Online Retailer's Non-Refundable Item Policy

  An online store sells custom-made items that are non-refundable. If, on the product page for these items, a clear banner states "ALL CUSTOM ORDERS ARE NON-REFUNDABLE" in bold, red text, and this message is reiterated in the shopping cart summary and again during the final checkout confirmation, it would be considered conspicuous.

  Explanation: The repeated and visually distinct presentation of the non-refundable policy ensures that a customer making a purchase has multiple opportunities to see and understand this important limitation on their ability to return the item, thereby preventing disputes based on a lack of notice.