Filed 3/17/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

BRETT LONG, 

Plaintiff and Respondent,

v.

PROVIDE COMMERCE, INC.,

Defendant and Appellant.

B257910

(Los Angeles County

Super. Ct. No. BC513925)

APPEAL from an order of the Superior Court of Los Angeles County,

Jane L. Johnson, Judge. Affirmed.

Cooley, Michael G. Rhodes, Leo P. Norton and Shannon Sorrells for Defendant

and Appellant.

Milstein Adelman, Paul D. Stevens, Mayo L. Makarczyk; Flaherty Hennessy, 

Raquel A. Flaherty and Sarah L. Gough for Plaintiff and Respondent.

_____________________
2

INTRODUCTION

Defendant Provide Commerce, Inc. (Provide) appeals from an order denying its 

petition to compel arbitration of certain consumer fraud claims brought by Plaintiff Brett 

Long on behalf of himself and a putative class of California consumers who purchased 

flower arrangements through Provide’s website, ProFlowers.com. Provide sought to 

compel arbitration based on a provision contained in the company’s “Terms of Use,” 

which were viewable via a hyperlink displayed at the bottom of each page on the 

ProFlowers.com website.

The Terms of Use on ProFlowers.com fall into a category of Internet contracts 

commonly referred to as “browsewrap” agreements. Unlike the other common form of 

Internet contract—known as “clickwrap” agreements—browsewrap agreements do not 

require users to affirmatively click a button to confirm their assent to the agreement’s 

terms; instead, a user’s assent is inferred from his or her use of the website. Because 

assent must be inferred, the determination of whether a binding browsewrap agreement 

has been formed depends on whether the user had actual or constructive knowledge of the 

website’s terms and conditions.

Plaintiff opposed the petition to compel arbitration on the ground that he was 

never prompted to assent to the Terms of Use, nor did he actually read them, prior to 

placing his order on ProFlowers.com. The trial court concluded the Terms of Use 

hyperlinks were too inconspicuous to impose constructive knowledge on Plaintiff, and 

denied the petition as such. We likewise find the hyperlinks and the overall design of the 

ProFlowers.com website would not have put a reasonably prudent Internet user on notice 

of Provide’s Terms of Use, and Plaintiff therefore did not unambiguously assent to the 

subject arbitration provision simply by placing an order on ProFlowers.com. We affirm.1

 

1

For the same reason, we likewise affirm the trial court’s order denying Provide’s 

motion to transfer venue. Because Plaintiff did not assent to Provide’s Terms of Use, he 

was not bound by the forum selection clause contained therein.
3

FACTS AND PROCEDURAL BACKGROUND

There is no material dispute about the underlying facts. Provide is an online 

retailer that owns and operates several websites, including ProFlowers.com. Through 

ProFlowers.com, Provide advertises and sells a variety of floral products, which are 

shipped to order from the grower to the online customer.

Plaintiff alleges he purchased a floral arrangement on ProFlowers.com, which had 

been depicted and advertised on the website as a “completed assembled product,” but 

which was delivered as a “do-it yourself kit in a box requiring assembly by the 

recipient.”2 Based on this allegation, Plaintiff sued Provide in the superior court, 

asserting claims for violations of the California Consumer Legal Remedies Act (Civ. 

Code, § 1750 et seq.) and Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.)

on behalf of himself and a putative class of California consumers who purchased 

similarly advertised floral arrangements on ProFlowers.com.

Provide moved to compel arbitration pursuant to the Federal Arbitration Act 

(9 U.S.C. § 1), arguing Plaintiff was bound by the Terms of Use for ProFlowers.com, 

including the Dispute Resolution provision contained therein. Provide’s evidence, 

consisting of a series of screen shots from the ProFlowers.com website, showed that at 

the time Plaintiff placed his order, the Terms of Use were available via a capitalized and 

underlined hyperlink titled “TERMS OF USE” located at the bottom of each webpage. 

The hyperlink was displayed in what appears to have been a light green typeface on the 

website’s lime green background, and was situated among 14 other capitalized and 

underlined hyperlinks of the same color, font and size.

 

2

The evidence shows Plaintiff purchased a Mother’s Day card and floral 

arrangement from ProFlowers.com for delivery to his mother in Kansas on the day before 

Mother’s Day in 2013.
4

Provide’s evidence also showed that, to complete his order, Plaintiff was required 

to input information and click through a multi-webpage “checkout flow.” The checkout 

flow screenshots show the customer information fields and click-through buttons 

displayed in a bright white box set against the website’s lime green background. At the 

bottom of the white box was a notice indicating “Your order is safe and secure,” 

displayed next to a “VeriSign Secured” logo. Below the white box was a dark green bar 

with a hyperlink titled “SITE FEEDBACK” displayed in light green typeface. Finally, 

below the dark green bar, at the bottom of each checkout flow page, were two hyperlinks 

titled “PRIVACY POLICY” and “TERMS OF USE,” displayed in the same light green

typeface on the website’s lime green background.

After Plaintiff placed his order on ProFlowers.com, Provide sent him an email

confirming the order. The email, beginning from the top, displayed the ProFlowers logo 

alongside the title “order confirmation.” This was followed by a dark green bar with 

several hyperlinks to apparent product offerings titled “Birthday,” “Anniversary,” “Get 

Well,” “Roses,” “Plants,” and “Gourmet Gifts.” Next, the email displayed a light green 

bar thanking Plaintiff for his order, followed by order summary information, including 

the order number, shipping address, delivery date, the product ordered, and a billing 

breakdown for the product, delivery charge, tax, and total charge. The order details were 

followed by two banner advertisements, then a notification regarding online account 

management services, with four hyperlinks to account management pages on 

ProFlowers.com. Another dark green bar with the text “Our Family of Brands” followed 

the account management hyperlinks, then six brand logos for “ProFlowers,” 

“redENVELOPE,” “ProPlants,” “Shari’s Berries,” “CHERRY MOON FARMS,” and 

“personalcreations.com.” Next, the email included a paragraph listing customer service 

contact information in small grey typeset. Then, in the same grey typeset, were two 

hyperlinks titled “Privacy Policy” and “Terms”. Finally, the email listed Provide’s 

corporate address, again in the same grey typeset.
5

According to Plaintiff’s declaration in opposition to Provide’s petition to compel 

arbitration, Plaintiff “did not notice a reference of any kind to ProFlowers ‘Terms and 

Conditions’ nor a hyperlink to ProFlowers ‘Terms of Use’ ” when he purchased flowers

for delivery on ProFlowers.com. Had Plaintiff noticed the hyperlink and clicked on it, he 

would have been taken to a page containing the full text of the Terms of Use, which 

began with the following notice: “By using any one of our Sites, you . . . acknowledge 

that you have read, understand, and expressly agree to be legally bound by these 

Terms and Conditions.”

3

 Later, under the heading “Dispute Resolution,” Plaintiff 

would have found the following arbitration provision:

“Agreement to Arbitrate Disputes: BY ACCESSING OR USING THE 

SITES, YOU EXPRESSLY AGREE THAT ANY LEGAL CLAIM,

DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND 

PROVIDE COMMERCE ARISING OUT OF OR OTHERWISE 

RELATING IN ANY WAY TO THE SITES . . . SHALL BE RESOLVED 

IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED 

BEFORE ONE COMMERCIAL ARBITRATOR FROM THE 

AMERICAN ARBITRATION ASSOCIATION (‘AAA’), RATHER 

THAN IN A COURT, AS DESCRIBED HEREIN. . . . YOU 

SPECIFICIALLY AGREE THAT YOU ARE BOUND TO RESOLVE 

ALL DISPUTES IN ARBITRATION, AND YOU ACKNOWLEDGE 

THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING 

YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE 

PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.”

Plaintiff argued he was not bound by the foregoing arbitration provision because 

he neither had notice of nor assented to the Terms of Use. In response, Provide argued 

the placement of the Terms of Use hyperlinks, particularly within the checkout flow, 

coupled with the hyperlink to “Terms” in the subsequent order confirmation email, was 

 

3

ProFlowers.com is among the “Sites” listed in Provide’s Terms of Use.
6

sufficiently conspicuous to put Plaintiff on inquiry notice as to the contents of the 

agreement. Accordingly, Provide maintained Plaintiff’s decision to continue with the 

order, whether he took the time to review the Terms of Use or not, was sufficient to 

establish his assent to be bound by the arbitration and venue provisions contained therein. 

The trial court agreed with Plaintiff, concluding the hyperlinks were too inconspicuous to 

put a reasonably prudent Internet consumer on inquiry notice. Provide now appeals this 

order.

DISCUSSION

A. Legal Principles; Arbitration and Browsewrap Agreements

“Under ‘both federal and state law, the threshold question presented by a petition 

to compel arbitration is whether there is an agreement to arbitrate.’ ” (Cruise v. Kroger 

Co. (2015) 233 Cal.App.4th 390, 396, italics omitted.) This threshold inquiry stems from 

the “ ‘basic premise that arbitration is consensual in nature.’ ” (Lawrence v. Walzer & 

Gabrielson (1989) 207 Cal.App.3d 1501, 1505.) “The fundamental assumption of 

arbitration is that it may be invoked as an alternative to the settlement of disputes through 

the judicial process ‘solely by reason of an exercise of choice by [all] parties.’ ” 

(Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 355.) Thus, notwithstanding 

“ ‘the cogency of the policy favoring arbitration and despite frequent judicial utterances 

that because of that policy every intendment must be indulged in favor of finding an 

agreement to arbitrate, the policy favoring arbitration cannot displace the necessity for a 

voluntary agreement to arbitrate.’ ” (Lawrence, at p. 1505.) As our Supreme Court has 

observed, “[t]here is indeed a strong policy in favor of enforcing agreements to arbitrate, 

but there is no policy compelling persons to accept arbitration of controversies which 

they have not agreed to arbitrate . . . .” (Freeman v. State Farm Mut. Auto. Ins. Co.

(1975) 14 Cal.3d 473, 481.)

This requirement applies with equal force to arbitration provisions contained in 

contracts purportedly formed over the Internet. While Internet commerce has exposed 

courts to many new situations, it has not fundamentally changed the requirement that 

“ ‘[m]utual manifestation of assent, whether by written or spoken word or by conduct, is 
7

the touchstone of contract.’ ” (Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 

1171, 1175 (Nguyen).) “ ‘ “Mutual assent is determined under an objective standard 

applied to the outward manifestations or expressions of the parties, i.e., the reasonable 

meaning of their words and acts, and not their unexpressed intentions or understandings.” 

[Citations.]’ ” (HM DG, Inc. v. Amini (2013) 219 Cal.App.4th 1100, 1109 (HM DG).) 

In applying this objective standard, outward manifestations of a party’s supposed assent 

are to be judged with due regard for the context in which they arise. California law is 

clear—“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.” (Windsor Mills, Inc. v. Collins & Aikman 

Corp. (1972) 25 Cal.App.3d 987, 993; see Specht v. Netscape Communs. Corp. (2d Cir. 

2002) 306 F.3d 17, 30 (Specht) [applying California law to commercial Internet 

transaction].)

“Contracts formed on the Internet come primarily in two flavors: ‘clickwrap’ (or 

‘click-through’) agreements, in which website users are required to click on an ‘I agree’ 

box after being presented with a list of terms and conditions of use; and ‘browsewrap’ 

agreements, where a website’s terms and conditions of use are generally posted on the 

website via a hyperlink at the bottom of the screen.” (Nguyen, supra, 763 F.3d at 

pp. 1175-1176.) The parties agree that the subject Terms of Use for the ProFlowers.com 

website falls into the browsewrap category.

“ ‘Unlike a clickwrap agreement, a browsewrap agreement does not require the 

user to manifest assent to the terms and conditions expressly . . . [a] party instead gives 

his assent simply by using the website.’ [Citation.] Indeed, ‘in a pure-form browsewrap 

agreement, “the website will contain a notice that—by merely using the services of, 

obtaining information from, or initiating applications within the website—the user is 

agreeing to and is bound by the site’s terms of service.” ’ [Citations.] Thus, ‘by visiting 

the website—something that the user has already done—the user agrees to the Terms of 

Use not listed on the site itself but available only by clicking a hyperlink.’ [Citation.] 

‘The defining feature of browsewrap agreements is that the user can continue to use the 
8

website or its services without visiting the page hosting the browsewrap agreement or 

even knowing that such a webpage exists.’ [Citation.] ‘Because no affirmative action is 

required by the website user to agree to the terms of a contract other than his or her use of 

the website, the determination of the validity of the browsewrap contract depends on 

whether the user has actual or constructive knowledge of a website’s terms and 

conditions.’ ” (Nguyen, supra, 763 F.3d at p. 1176.) More to the point here, absent 

actual notice, “the validity of [a] browsewrap agreement turns on whether the website 

puts a reasonably prudent user on inquiry notice of the terms of the contract.” (Id. at 

p. 1177.)

With these foundational legal principles in place, we turn our focus to the specifics 

of the browsewrap agreement in the instant case, and whether the design of Provide’s 

website and order confirmation email were sufficient to conclude Plaintiff agreed to be 

bound the Terms of Use and arbitration provision contained therein simply by placing his 

order on ProFlowers.com.

B. The “Terms of Use” Hyperlinks Are Not Sufficiently Conspicuous to Put a 

Reasonably Prudent Internet Consumer on Inquiry Notice; Plaintiff Did

Not Manifest His Unambiguous Assent to Be Bound by the Terms of Use

Provide does not dispute Plaintiff’s testimony that he had no actual knowledge of 

the Terms of Use when he placed his order on ProFlowers.com. Accordingly, we must 

decide whether the design of the ProFlowers.com website and/or the conspicuousness of 

the hyperlinks to the Terms of Use were sufficient to put a reasonably prudent Internet 

consumer on inquiry notice of the browsewrap agreement’s existence and contents. (See 

Nguyen, supra, 763 F.3d at p. 1177.) Because the material evidence consists exclusively 

of screenshots from the website and order confirmation email, and the authenticity of 

these screenshots is not subject to a factual dispute, we review the issue de novo as a pure 

question of law. (See HM DG, supra, 219 Cal.App.4th at p. 1109 [“ ‘if the material facts 

are certain or undisputed, the existence of a contract is a question for the court to 

decide’ ”].)
9

It appears that no California appellate court has yet addressed what sort of website 

design elements would be necessary or sufficient to deem a browsewrap agreement valid 

in the absence of actual notice. Accordingly, in addition to the general contract principles 

discussed above, our analysis is largely guided by two federal cases from the Second and 

Ninth Circuit Courts of Appeals, each of which considered the enforceability of a 

browsewrap agreement applying the objective manifestation of assent analysis dictated 

by California law. (See Specht, supra, 306 F.3d at p. 30, fn. 13; Nguyen, supra, 763 F.3d 

at p. 1175.) In keeping with the principles articulated in these authorities, we conclude 

the design of the ProFlowers.com website, even when coupled with the hyperlink 

contained in the confirmation email, was insufficient to put Plaintiff on inquiry notice of

the subject Terms of Use.

In Specht, the Second Circuit declined to enforce an arbitration provision 

contained in a software licensing browsewrap agreement where the hyperlink to the 

agreement appeared on “a submerged screen” below the “ ‘Download’ ” button that the 

plaintiffs clicked to initiate the software download. (Specht, supra, 306 F.3d at 

pp. 30-32.) After reviewing California contract law, the Specht court acknowledged that 

a user’s act of clicking a download button, combined with “ ‘circumstances sufficient to 

put a prudent man upon inquiry’ ” as to the existence of licensing terms, would constitute 

a sufficient manifestation of assent to be bound. (Id. at p. 31.) However, the court was 

quick to point out that the opposite must also be true—that “a consumer’s clicking on a 

download button does not communicate assent to contractual terms if the offer did not 

make clear to the consumer that clicking on the download button would signify assent to 

those terms.” (Id. at pp. 29-30.) The design of the defendant’s website, the Specht court 

concluded, exemplified the latter circumstance.
10

Though the website advised users to “ ‘Please review and agree to the terms of 

the . . . software license agreement before downloading and using the software,’ ” the 

Specht court emphasized that users would have encountered this advisement only if they 

scrolled down to the screen below the website’s invitation to download the software by 

clicking the download button. (Specht, supra, 306 F.3d at p. 23.) This meant that when 

the plaintiffs clicked the download button, they “were responding to an offer that did not 

carry an immediately visible notice of the existence of license terms or require 

unambiguous manifestation of assent to those terms.” (Id. at p. 31.) The fact that users 

might have noticed from the position of the scroll bar that an unexplored portion of the 

webpage remained below the download button did not change the reasonableness 

calculation. Under the circumstances presented, “where consumers [were] urged to 

download free software at the immediate click of a button,” the Specht court concluded 

placing the notice of licensing terms on a submerged page “ ‘tended to conceal the fact 

that [downloading the software] was an express acceptance of [the defendant’s] rules and 

regulations.’ ” (Id. at p. 32.) Thus, notwithstanding what the plaintiffs might have found 

had they taken “ ‘as much time as they need[ed]’ to scroll through multiple screens on a 

webpage” (ibid.), the Specht court held that “a reasonably prudent offeree in plaintiffs’ 

position would not have known or learned . . . of the reference to [the software’s] license 

terms hidden below the ‘Download’ button on the next screen.” (Id. at p. 35.)

More than a decade after the Second Circuit decided Specht, the Ninth Circuit in 

Nguyen considered whether the conspicuous placement of a “Terms of Use” hyperlink, 

standing alone, would be sufficient to put an Internet consumer on inquiry notice. 

(Nguyen, supra, 763 F.3d at p. 1178.) Unlike in Specht, the hyperlink in Nguyen was 

visible “without scrolling” on some of the website’s pages, while on others “the hyperlink 

[was] close enough to the ‘Proceed with Checkout’ button that a user would have to bring 

the link within his field of vision” to complete an online order. (Ibid.) These differences 

with Specht notwithstanding, the Nguyen court concluded the plaintiff’s act of placing an 

order did not constitute an unambiguous manifestation of assent to be bound by the 

browsewrap agreement, holding “proximity or conspicuousness of the hyperlink alone is 
11

not enough to give rise to constructive notice” (Ibid.) The court reasoned that Specht 

had only identified a circumstance that was not sufficient to impart inquiry notice—where 

the only reference to license terms appeared on a submerged screen. (Ibid.) But in cases 

where courts had “relied on the proximity of the hyperlink to enforce a browsewrap 

agreement,” the Nguyen court explained, those websites had “also included something

more to capture the user’s attention and secure her assent.” (Id. at p. 1178, fn. 1, italics 

added.) Typically that “something more” had taken the form of an explicit textual notice

warning users to “ ‘Review terms’ ” or admonishing users that by clicking a button to 

complete the transaction “ ‘you agree to the terms and conditions in the [agreement].’ ” 

(Id. at p. 1178 & fn. 1.) From those cases, the Nguyen court derived the following bright 

line rule for determining the validity of browsewrap agreements: “[W]here a website 

makes its terms of use available via a conspicuous hyperlink on every page of the website 

but otherwise provides no notice to users nor prompts them to take any affirmative action 

to demonstrate assent, even close proximity of the hyperlink to relevant buttons users 

must click on—without more—is insufficient to give rise to constructive notice.” (Id. at 

pp. 1178-1179.)

Provide argues we should disregard Nguyen as an outlier case, and follow Specht 

to the extent it suggests a conspicuous hyperlink that provides “ ‘immediately visible 

notice’ ” of a browsewrap agreement is sufficient, standing alone, to put a reasonably 

prudent Internet consumer on inquiry notice of the agreement’s terms. In that regard, 

Provide observes that “in Specht, the only reference to license terms appeared on a 

submerged screen out of sight to users when they clicked on buttons to download 

software.” In contrast, Provide argues the Terms of Use hyperlink on ProFlowers.com

“is immediately visible on the checkout flow, is viewable without scrolling, and located 

next to several fields that the website user is required to fill out and the buttons he must 

click to complete an order.” Given this distinction, Provide argues the hyperlink was 

sufficiently conspicuous to “put a reasonable user on notice of the Terms of Use.” We 

disagree.
12

Though it may be that an especially observant Internet consumer could spot the 

Terms of Use hyperlinks on some checkout flow pages without scrolling, that quality 

alone cannot be all that is required to establish the existence of an enforceable

browsewrap agreement. Rather, as the Specht court observed, “[r]easonably conspicuous 

notice of the existence of contract terms and unambiguous manifestation of assent to 

those terms by consumers are essential if electronic bargaining is to have integrity and 

credibility.” (Specht, supra, 306 F.3d at p. 35.) Here, the Terms of Use hyperlinks—

their placement, color, size and other qualities relative to the ProFlowers.com website’s 

overall design—are simply too inconspicuous to meet that standard.

Indeed, our review of the screenshots reveals how difficult it is to find the Terms 

of Use hyperlinks in the checkout flow even when one is looking for them.

4

 This of 

course is to say nothing of how observant an Internet consumer must be to discover the 

hyperlinks in the usual circumstance of using ProFlowers.com to purchase flowers, 

without any forewarning that he should also be on the lookout for a reference to “Terms 

of Use” somewhere on the website’s various pages. Contrary to Provide’s 

characterization, the subject hyperlinks in the checkout flow are not “located next to” the 

fields and buttons a consumer must interact with to complete his order. Those fields and 

buttons are contained in a separate bright white box in the center of the page that 

contrasts sharply with the website’s lime green background. To find a Terms of Use

hyperlink in the checkout flow, a consumer placing an order must (1) remove his 

attention from the fields in which he is asked to enter his information; (2) look below the 

buttons he must click to proceed with the order; (3) look even further below a “VeriSign 

Secured” logo and notification advising him that his “order is safe and secure,” which 

itself includes a hyperlink to “Click here for more details”; (4) look still further below a 

thick dark green bar with a hyperlink for “SITE FEEDBACK”; and (5) finally find the 

“TERMS OF USE” hyperlink situated to the right of another hyperlink for the website’s 

 

4 We focus our analysis on the checkout flow as Provide concedes the placement of 

Terms of Use hyperlink on the product webpage is “less conspicuous.”
13

“PRIVACY POLICY,” both of which appear in the same font and light green typeface

that, to the unwary flower purchaser, could blend in with the website’s lime green 

background. True, on a handful of these pages no scrolling is required to complete the 

hunt. But that, in our assessment, does not change the practical reality that the checkout 

flow is laid out “ ‘in such a manner that it tended to conceal the fact that [placing an 

order] was an express acceptance of [Provide’s] rules and regulations.’ ” (Specht, supra, 

306 F.3d at p. 32.)

As for Provide’s contention that the subsequent order confirmation email 

somehow provides the notice that was missing from the checkout flow, again, we 

disagree. Unlike the hyperlink on some checkout flow pages, the screenshots suggest the 

hyperlink in the email is located on a submerged page, requiring the customer to scroll 

below layers of order summary details, advertisement banners, hyperlinks to “convenient 

account management services,” several logos for Provide’s “Family of Brands,” and 

customer service contact information to finally find a reference to “Terms” printed in 

grey typeface on a white background. This is not the sort of conspicuous alert that can be 

expected to put a reasonably prudent Internet consumer on notice to investigate whether 

disputes related to his order will be subject to binding arbitration.

While the lack of conspicuousness resolves the instant matter, we agree with the 

Nguyen court that, to establish the enforceability of a browsewrap agreement, a textual 

notice should be required to advise consumers that continued use of a website will 

constitute the consumer’s agreement to be bound by the website’s terms of use. (See 

Nguyen, supra, 763 F.3d at pp. 1178-1179.) In our view, the problem with merely 

displaying a hyperlink in a prominent or conspicuous place is that, without notifying 

consumers that the linked page contains binding contractual terms, the phrase “terms of 

use” may have no meaning or a different meaning to a large segment of the Internet-using 

public. In other words, a conspicuous “terms of use” hyperlink may not be enough to 
14

alert a reasonably prudent Internet consumer to click the hyperlink.

5

 As the Nguyen court 

observed, “[w]hile failure to read a contract before agreeing to its terms does not relieve a 

party of its obligations under the contract, [citation], the onus must be on website owners 

to put users on notice of the terms to which they wish to bind consumers. Given the 

breadth of the range of technological savvy of online purchasers, consumers cannot be 

expected to ferret out hyperlinks to terms and conditions to which they have no reason to 

suspect they will be bound.” (Id. at p. 1179, italics added.) Though we need not resolve 

the issue here given the inconspicuousness of the Terms of Use hyperlinks on the 

ProFlowers.com website, in our view the bright line rule established by Nguyen is 

necessary to ensure that Internet consumers are on inquiry notice of a browsewrap 

agreement’s terms, regardless of each consumer’s degree of technological savvy. Online 

retailers would be well-advised to include a conspicuous textual notice with their terms of 

use hyperlinks going forward.

C. Plaintiff Did Not Agree to the Venue Provision Either

In the alternative, Provide argues the trial court erred by denying its request to 

transfer venue to San Diego pursuant to a forum selection clause in the Terms of Use. 

That clause, which is itself presented as an alternative to a class arbitration waiver, 

provides: “[I]f an arbitrator deems your Waiver of Class Arbitration to be invalid or 

unenforceable, then . . . you expressly acknowledge and agree that: (ii) all Disputes shall 

be resolved by a state or federal court located in the county of San Diego, California.” 

The trial court denied the request to transfer venue for the same reason it denied the 

petition to compel arbitration—namely, because Plaintiff did not agree to the Terms of 

Use, he did not agree to the forum selection clause contained therein.

 

5 Notably, this was not a problem in Specht because, although the hyperlink to the 

subject license agreement was displayed on a submerged portion of the download page, 

the hyperlink included a notice to “ ‘Please review and agree to the terms of the Netscape 

SmartDownload software license agreement before downloading and using the 

software.’ ” (Specht, supra, 306 F.3d at p. 23.)
15

Provide argues the trial court’s reasoning was flawed, because forum selection 

clauses are presumptively valid. Thus, Provide maintains, though it had the burden to 

establish an enforceable arbitration agreement, “the presumption in favor of [forum 

selection clause] enforcement shift[ed] the burden to [Plaintiff] . . . to show why the 

provision should not be enforced.” Insofar as Plaintiff “fail[ed] to establish the 

unenforceability of the venue provision” in his opposition papers, Provide argues the trial 

court was required to enforce the provision and transfer the action to San Diego. We 

disagree.

Provide’s reliance on the presumptive validity of forum selection clauses in 

otherwise enforceable contracts proves too much. Contrary to Provide’s implicit 

premise, the presumption of validity is not a substitute for proof of the resisting party’s

objective manifestation of assent to the larger contract. If it were, a party would establish 

the existence of a binding contract simply by showing that the contract contained a 

presumptively valid forum selection clause—an obviously absurd result. The trial court 

was correct; because Plaintiff was not bound by Provide’s Terms of Use, he also could 

not have been bound by the forum selection clause contained therein.
16

DISPOSITION

The order is affirmed. Plaintiff Brett Long is entitled to his costs.

CERTIFIED FOR PUBLICATION

JONES, J.*

We concur:

ALDRICH, Acting P. J.

LAVIN, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.