Internet contracts are classified "by the way in which the user purportedly gives their assent to be bound by the associated terms: browsewraps, clickwraps, scrollwraps, and sign-in wraps." Keebaugh v. Warner Bros. Ent. Inc., 100 F.4th 1005, 1014 (9th Cir. 2024) (quoting Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 463 (2021)). State law is generally uniform with respect to internet contract formation. See, e.g., Starke v. SquareTrade, Inc., 913 F.3d 279, 290 n.7 (2d Cir. 2019); Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012); Hancock v. AT&T Co., 701 F.3d 1248, 1256 (10th Cir. 2012). 

Sign-in wrap agreements “include a textual notice indicating the user will be bound by the terms, but they do not require the consumer to review those terms or to expressly manifest their assent to those terms by checking a box or clicking an ‘I agree' button.” Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 471 (2021). Instead, the consumer is “purportedly bound” to the terms of service agreement “by clicking some other button that they would otherwise need to click to continue with their transaction or their use of the website—most frequently, a button that allows the consumer to ‘sign in' or ‘sign up' for an account.” Id. Where a link to the Terms of Service is provided, but the user is not required to separately indicate that they had read or agree with those terms before using the website's services, whether agreement is manifested agreement by signing up for or continuing to use the website is analyzed under a inquiry-notice framework. Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 865–66 (9th Cir. 2022); see also Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 463–64 (2021). 

Under an inquiry theory of notice for internet contracts, such a contract is formed between website users and operators where “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022); see also Chabolla v. ClassPass Inc., 129 F.4th 1147, 1154 (9th Cir. 2025); see also Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 469 (2021); Herzog v. Superior Ct., 101 Cal. App. 5th 1280, 1296 (2024).

The first step of the inquiry-notice internet contract formation test asks whether there is reasonably conspicuous notice of the terms to which the consumer will be bound provided by the website. Keebaugh v. Warner Bros. Ent. Inc., 100 F.4th 1005, 1018 (9th Cir. 2024); Herzog, 101 Cal. App. 5th at 1296. This test has two aspects: the visual design of the webpages and the context of the transaction—both of which “should be considered together.” Chabolla, 129 F.4th at 1155; see Sellers, 73 Cal. App. 5th at 477. Thus, a reasonable internet user should be expected to be more vigilant in looking for contractual terms when the context of the transaction reasonably implies a contractual relationship. 

Visual conspicuousness is a matter of whether the notice is “displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it.” Berman, 30 F.4th at 856; see also Sellers, 73 Cal. App. 5th at 480–81. This largely centers on an analysis of the “visual aspects of the notice” within the “overall screen design.” Keebaugh, 100 F.4th at 1019; Oberstein v. Live Nation Ent. Inc., 60 F.4th 505, 516 (9th Cir. 2023); see also Long v. Provide Com., Inc., 245 Cal. App. 4th 855, 865–66 (2016) (“the Terms of Use hyperlinks—their placement, color, size and other qualities relative to the . . . Web site's overall design—are simply too inconspicuous to meet that standard.”); see also Meyer v. Uber Techs., Inc., 868 F.3d 66, 79 (2d Cir. 2017). 

The context of the transaction includes (1) whether the transaction contemplates a continuing relationship by creating an account requiring a full registration process, (2)  whether the user is entering a “free trial”; (3) whether credit card information is provided by the user; and (4) whether the user has downloaded an app on their phone (suggesting consistent accessibility). See, e.g., Sellers, 73 Cal. App. 5th at 480; Keebaugh, 100 F.4th at 1020; B.D. v. Blizzard Ent., Inc., 76 Cal. App. 5th 931, 947 (2022). 

Next, the second step of the inquiry-notice internet contract formation test asks us to consider whether any action taken by the internet user—such as clicking a button or checking a box—“unambiguously manifest[ed] his or her assent” to proposed contractual terms. Keebaugh, 100 F.4th at 1018 (quotation omitted).

Under Ninth Circuit precedent, the user must be “explicitly advised that the act of clicking will constitute assent to the terms and conditions of an agreement.” Berman, 30 F.4th at 857. For example, where the action button says “Continue” rather than “Sign up”—there may be no unambiguous manifestation of assent. Chabolla, 129 F.4th at 1158. 

The Second Circuit, however, considers a reasonably prudent device user (that is, one who “is not a complete stranger to computers or smartphones, having some familiarity with how to navigate to a website or download an app”) being "on inquiry notice of contractual terms where the terms are presented in a clear and conspicuous way" without requiring their express acceptance. Edmundson v. Klarna Inc., 85 F.4th 695, 702–04 (2d Cir. 2023) (“acceptance need not be express” and can be manifested by “evidence that the offeree knew or should have known of the terms and understood that acceptance of the benefit would be construed by the offeror as an agreement to be bound”); see also Schnabel v. Trilegiant Corp., 697 F.3d 110, 128 (2d Cir. 2012); cf. Chabolla, 129 F.4th at 1171–72 (discussing whether a "reasonably prudent Internet user" had "unambiguously manifested assent" to a website's Terms of Use) (Bybee, J., dissenting). 

In Godun v. JustAnswer LLC, No. 24-2095, __ F.4th __ (9th Cir. Apr. 15, 2025), the Ninth Circuit held that a user was not bound by the arbitration provision in a website's Terms of Service in a dispute concerning auto-renewal. The court found that the text of the advisal notice was "relatively small" and not located “directly above or below” the action (“Start my trial”) button, which created the impression of being visually “buried.” 

Additionally, the color of the advisal text blends into the background and is displayed in a lighter color than other text on the page. In fact, portions of the text are hard to read as they do not contrast with the lighter portions of the background image. This gray-on-gray presentation also suggests that the advisal is inconspicuous, and we would not expect a reasonable internet user's attention to be drawn to it. While each of these factors may not be enough on their own . . . , under the totality of the circumstances, the advisal was not visually conspicuous.

Professor Eric Goldman did not care for the term "advisal" and expressed concern that it will propagate and create "even more nomenclature confusion to a legal area already riddled with confusing and misunderstood jargon." Nonetheless, his "takeaways" from the Godun case were: (1) Courts will pixel-police the formation screens in great detail; (2) They will make all inferences regarding TOS formation against the drafter; and (3) If you want to avoid the first two points, use a two-click process (a “clickwrap”).