entitled to enforce the arbitration provision between the contract between ms wells and powell mobile as a third party beneficiary and second that this court should instruct the district court on remand to compel arbitration now mobile messenger is a third party beneficiary of ms wells his agreement with power mobile because in all caps at the beginning of that agreement it states these terms include a waiver of claims by you against your wireless carrier or company suppliers and that you are three sixty two now this waiver provision the waiver provision later in that agreement repeats so that's number one reason i know it's a warning that a waiver provision is contained in the agreement of this agreement include a waiver of claims by you against company suppliers and a little bit later in the agreement there is a waiver provision that specifically states that by agreeing to the contract you voluntarily irrevocably unconditionally release your claims and your weight for your right to bring any type of lawsuit against again your wireless carrier and any of power mobiles suppliers now here there's really no dispute the mobile messenger is one of power mobile suppliers mobile messenger supplied services to power mobile that enabled the services that ms well signed up for in this case it connected pound mobile to the wireless carriers and allowed the bills to be placed on to the wireless carrier bell and also allowed text messages to travel or over the short code can so what's your best case third party you're on a gibson versus wal mart stores a tenth circuit case one eight one f third one sixty three in that case the tenth circuit held that a beneficiary of a very similar waiver provision was a third party beneficiary of the contract in title to enforce that contract to protect the valuable benefit that they had received under the contract the benefit of not being sued in court and in fact  washington state law in this not on whether a waiver provision can create a third party beneficiary contract but washington law is very similar to other states on this common law topic of third party beneficiaries where as long as the contract creates a direct obligation from a promise or to a third party a third party beneficiary is created and that's what happened here ms wells promise not to sue mobil messenger which is a power mobile supplier and that benefit flows directly from the contract to mobile messenger creating a third party beneficiary relationship under washington law and that law has been  for many years now in fact this court in rajagopal on versus no world which is the court that the case the district court largely relied upon stated the same rule that if there is a direct benefit given to a third party that creates a third party beneficiary however let me interject if i may please just clarifying question why i can understand pretty well i think your argument that your clients that intended beneficiary because of the vision in the contract saying they waive claims but i don't understand is how at this point assuming we accept your argument on that as opposed to your friends argument if we do that how we could order the court to sign that's our patrician when i thought there was this recording reached those issues you're right your honor that judge delay did not need to reach that issue because he found that we were not entitled to enforce the contract however there is uncontroverted evidence confirmed from multiple sources that establishes that miss wells did assent to the terms and conditions here now when you sign up online the best way to confirm someone's identity is to use something they know like their phone number and require that they be in possession of that phone and that allows you to have a double confirmation that the person is who they say they are before you bill them that's exactly what was done here someone using ms while his ip address that is the computer router at her house entered her cell phone number into a pound mobile controlled landing page that contain notifications about the service that was being purchased the charges that would issue and a hyperlink to the terms and conditions they checked a box indicating that they accepted the terms and conditions and clicked next going to a second landing page ms wells his cell phone then received a text message and the exact time of that message is receipt is confirmed and a second text message went to ms wells a cell phone again confirmed by eighteenth he's independent records is what established consent is that what you're saying yes your honor this is what is there a finding of fact made by the the court did not need to reach that issue however it did speak several times to the weaknesses of mr kyra's factual case stating that the record seemed to suggest very strongly that there was an agreement that you are seven and that you are fifteen and stating i think the defendant makes a very strong case that the hancock approach ought to be followed here now that's a reference to hancock versus a t n t another tenth circuit case which is seven zero one f third twelve forty eight in that case the court held that a bare denial of that someone who visited you know the relevant website or in that case clicked the assent button was insufficient to create a contested issue a fact as to assent when it is carefully worded to avoid actually contradicting any of those details facts i just read to you in this case ms well stated that she never visited the website when dot com but the facts presented in the palm of all dr ration in the record do not state that she visited that website it states that she clicked on an ad was taken to a landing page with an entirely different address and the possibility if some of you have her cell phone they could have them this if someone new her cell phone number was in possession of her cell phone was in her house using her computer router and then after the second text message was received entered her first and last name her e mail address and her home address into a web page i would have to have been the ip address belongs to  comcast in longview washington which is where the plaintiff lives and it was used for all of these separate interactions and the evidence shows that they entered her home address and e mail address using the same web can bring claims against pal mobile itself the party your contracting with then the arbitration clause requires that those claims brought against pal mobile be taken to arbitration it says you're not going to bring in lawsuits against anybody you're not going to bring any claims or lawsuits against your wireless carrier or pal mobile suppliers but you and it would be contradictory for the arbitration clause to have no idea with just certain i have no idea maybe if you waited listen to the question sentence so it says you cannot bring a lawsuit against your wireless carrier any companies suppliers or anyone other than pound mobile relating to the service oh i see compan with twelve so twelve requires that those claims rather than being brought in a lawsuit against probable be brought in arbitration and it's limited to pal mobile because all the claims against how mobile suppliers and the wireless carrier are waived by the previous paragraph your honor i think first we have to look to the terms of arbitration clause itself that's what this court instructs in kramer that's what this court instructs in monday and those are the two key cases that involve non signatory so as a counsel you're going to answer a different question than the one i  it waves claims by suppliers the problem with that wording however is suppliers by so surprising foods you we would contend that it does not this is what i'm asking this question so so it says suppliers but in your view the suppliers does not include them to you that is correct your honor that's because in order to determine who suppliers are we have to look at the intent of the parties here the intent of the parties that means both parties that doesn't mean just what was powers intent we can assume maybe pozen tent was to include mobile messenger we have to also look under washington law to what a power users intent would be because that term is not defined in the contract so can we assume that a consumer entering into a contract bed for action items on their cell phone intended supplier to mean a third party aggregator i don't think that we can your honor i don't think they an average consumer even knows what a third party aggregator i honor we don't look to the third parties intent the intent at issue is the intent between the contracting parties so here we have to look to what is the intent of power and what is the intent of a power user and  importantly the contract itself actually speaks to what the party's intent with was with respect to third party beneficiaries and i discovered this in reading the contract again yesterday if you look at paragraph thirteen of the terms and conditions that's at either page two a one or page three seventy four of the record paragraph thirteen starts with this sentence you understand and agree that except as expressly set forth here in this agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this agreement the parties intent regarding third party beneficiary status is clearly spelled out in this contract this really should end the inquiry as to whether or not defendants are third party beneficiary he's really that's inconsistent with the lemon is in the and i think that that would then get us back to the argument of whether or not suppliers is a te can you can you ask the question again what i missed were asking and raising the issue as to whether that isn't inconsistent with paragraph eleven because paragraph eleven clearly gives rights to people other than the parties as anybody of the parties i don't think it is inconsistent because i think that the benefit that's created by paragraph eleven is not a direct benefit it's a benefit that does i think what's interacting unclear about that is that it has no relation to the performance of the actual contract the contract is for a bed and when auction site and ok so we we have  therapy and we have your answer to that but i am i would like to get back to the i mean i'm not sure i'm satisfied with the answer but i think it's as good as we're going to get let's get back to to the question of what does what of that conflict well i know washington law you both parties have to intend that result and so if we can't find them know what your client intended we haven't had we haven't had a  i mean you know the clerks clearly are m q this is prior here if that's where we're going with that i think again because there's simply no evidence in the record that defendants are suppliers and in fact that's what the need to occur with respect to third party beneficiary status and that is because it has to be both parties it doesn't matter what palin attention let in the contrary to your argument we look at this and conclude that in fact what follows from that is then we need to look at whether or not that what the defendants are saying is look if we look at arbitration clause we're not included in that so we want to point to this other provision in the contract and say this is i think the analysis is even if they are they're still not entitled to enforce the waiver provision and that is their excuse me the arbitration provision and that's because the arbitration provision is very clear as to who the parties to that provision are bar against lawsuits against m q but would not give the patient as an alternative method of solving it disputes i think that is this is just act as a total your argument absolutely and this arbitration provision was drafted by the defendants if they wanted to have been included in it they could have included themselves and they chose not to and in that case the court found the third party was a third party beneficiary but said even though they're a third party beneficiary to the contract they're not entitled to enforce the arbitration clause because the arbitration clause by its terms only applies to the parties  and i think that's exactly what we have here either ok thank you scuse me ruth it's actually in the defendant's reply but i can give you the citation i just have a few quick points and repeat all i'm first the district court never found that mobile messenger and cube are not suppliers indeed at you are thirty seven lines eleven to thirteen opposing counsel conceded that the court could assume mobile messenger was a supplier for the purposes of the motion to compel and in their brief it to fifty six no five so as their opposition to the motion to compel arbitration they stated that defendant three ninety paragraph five point two two of the first amended complaint in addition we do not believe that paragraph thirteen of the powerball contract contradicts paragraph eleven because it does state acceptance expressly set forth here in there for paragraph eleven the waiver clause does air can provide third party beneficiary status on mobile messenger finally the validity of the waiver clause goes to the arbitrator in this case as back i check cashing teaches us even if the contract is void or voidable the arbitrator decides in the first instance the validity of the waiver council would you respond to your posing council's argument that since supplier is not in the arbitration provision it is not included well your honor it wouldn't make sense to include suppliers in the arbitration provision because the claims against the suppliers are supposed to be waived in paragraph eleven which precedes the arbitration clause in paragraph twelve it would be internally contradictory and allowing them to bring lawsuits in violation of the waiver clause that would then not be covered by the arbitration clause would allow an end run not not not not your client because the claims against our client were waived in the previous paragraph and this is exactly the fact situation in gibson versus wal mart stores which i cited to you earlier there an employee waived claims against her co employees and could only bring a lawsuit against wal mart the employer there was then a leader arbitration clause that said that claims like unst wal mart needed to be arbitrated and the court ordered arbitration take a brief