## Facts

- Provide Commerce, Inc. operated ProFlowers.com, an online retailer selling floral products for shipment.
- Brett Long bought a floral arrangement on ProFlowers.com that was advertised as a completed product but allegedly arrived as a kit requiring assembly by the recipient.
- Long filed a putative class action asserting consumer-protection claims, including under the CLRA and UCL.
- Provide sought to enforce ProFlowers.com Terms of Use containing (1) an arbitration clause and (2) a forum-selection clause.
- The Terms of Use were presented as a “browsewrap” link at the bottom of webpages; users were not required to click an “I agree” button or otherwise expressly accept.
- On checkout pages, the Terms hyperlink appeared in light-green text on a lime-green background below a central white order-entry box, alongside other footer items (e.g., a privacy-policy link and security logo).
- Provide did not contend Long actually read the Terms; Long asserted he was not prompted to review or assent before submitting his order.
- The trial court denied the petition to compel arbitration and the motion to transfer venue, finding the link too inconspicuous to charge Long with constructive notice.

## Issues

1. Whether a consumer is bound to a browsewrap Terms of Use (including an arbitration clause) when the website provides only a footer hyperlink and no affirmative assent mechanism or explicit notice tied to checkout.
2. Whether, absent assent to the Terms of Use, the website operator may enforce a forum-selection clause to transfer venue.

## Decision

- The Court of Appeal affirmed the trial court’s denial of the petition to compel arbitration.
- The court held Long lacked actual or constructive notice of the Terms of Use and therefore did not unambiguously manifest assent by placing an order.
- The court affirmed denial of the motion to transfer venue because the forum-selection clause was part of the same unassented-to Terms of Use.
- A post-purchase confirmation email hyperlink to the Terms did not supply sufficient notice to bind Long to the Terms for the transaction at issue.

## Legal Principles

- Browsewrap agreements infer assent from website use; enforceability turns on whether the user had actual notice or was on inquiry (constructive) notice of the terms.
- A terms-of-use hyperlink that is merely present on webpages, without additional notice or an affirmative assent prompt, generally does not create constructive notice, even if the link is near checkout controls.
- Website design and presentation matter: inconspicuous placement, low-contrast text, and footer-style grouping with miscellaneous links can defeat a claim of constructive notice.
- Absent mutual assent to the terms containing arbitration and forum-selection provisions, those provisions are not enforceable against the consumer.

## Conclusion

Because ProFlowers.com did not provide reasonably conspicuous notice of its Terms of Use or prompt affirmative assent at checkout, Long was not bound by the browsewrap arbitration or forum-selection clauses, and the denials of arbitration and venue transfer were affirmed.


Long v. Provide Com. Inc., 245 Cal. App. 4th 855 (Ct. App. 2016)