Filed 3/17/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION THREE


BRETT LONG,                                      B257910

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. BC513925)
        v.

PROVIDE COMMERCE, INC.,

        Defendant and Appellant.



        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.


                                _____________________
                                    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.


                                             2
                   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.


                                              3
       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.




                                            4
       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.


                                             5
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


                                              6
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


                                              7
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’ ”].)



                                              8
       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.




                                             9
       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


                                            10
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.



                                              11
       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.”


                                             12
“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




                                              13
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.)


                                              14
       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.




                                             15
                                     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.


                                            16
