Are Website Terms of Use and Clickwrap Agreements Enforceable in California?

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Probably not with a footer link alone. Terms of service linked in a footer, with nothing to click, are a browsewrap. The California Court of Appeal has said a browsewrap resting only on a hyperlink is not enough to bind a consumer. (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 470.) Online terms bind a user who received reasonably conspicuous notice and took a clear action to agree, as in a clickwrap agreement with a checkbox. Kolmogorov Law, P.C. litigates these issues for businesses in Orange County and Los Angeles.

Call (909) 235-6116 or contact us online to discuss whether your online terms will hold up, or a lawsuit filed despite them.

The four kinds of online agreement

Courts sort online terms by what the user had to do. The same court described four types. (Sellers, supra, 73 Cal.App.5th at pp. 463-464.)

• Browsewrap: the terms sit behind a link, and the site treats continued browsing as agreement.
• Clickwrap: the user must click "I agree" or check a box, with the terms available by link.
• Scrollwrap: the full terms are displayed and the user must scroll through them before agreeing.
• Sign-in wrap: a notice near the sign-up or checkout button says that proceeding means accepting the linked terms.

The first is at the weak end. Clickwrap is generally enforceable, and scrollwrap is consistently enforced. Sign-in wrap is the contested middle, and it is what most websites use. (Id. at pp. 470-471.)

What a court asks: notice and assent

A contract needs consent that is mutual and communicated by each party to the other. (Civ. Code, § 1565.) Online there is usually no signature on paper, so courts ask two questions. Did the site give reasonably conspicuous notice of the terms? Did the user do something that unambiguously showed agreement to them?

Actual knowledge settles the first question, but it is rarely provable. Without it, the test is whether a reasonably prudent user would have been on notice, judged from the design and content of the page. In a footer-link case, the Ninth Circuit held that a hyperlink on every page, even one close to the checkout button, was insufficient when nothing else told users they were agreeing to anything. (Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1178-1179.) The court noted the traditional reluctance to enforce browsewrap terms against individual consumers.

The business carries the burden. A court orders arbitration only if it determines that an agreement to arbitrate exists. (Code Civ. Proc., § 1281.2.) The party asking for arbitration has to prove that agreement, which in practice means proving what the screen looked like on the day this customer signed up.

Context counts as well. In Sellers, the transaction was a low-cost trial that rolled into a recurring charge, and the court measured the notice against the conspicuousness the automatic renewal statute demands. The notices failed. Courts have also been more willing to hold sophisticated business users to linked terms than individual consumers.

Design choices that sink online terms

I review the sign-up flow the way a judge will, from screenshots. These features cause the most trouble.

• A terms link that appears only in the footer or a menu.
• Notice text in small gray type on a busy page.
• Hyperlinks that are not underlined, colored, or otherwise visibly links.
• A notice placed far from the button, or below it where a user need not look.
• A button labeled "Continue" or "Place order" with no statement that clicking it accepts the terms.
• A mobile layout that pushes the notice off the first screen.
• No reliable record of which version of the page a given customer saw.

Any one of these gives the plaintiff an argument. Several together usually decide the motion.

Design choices that hold up: clickwrap done properly

The strongest setup is an unchecked box the customer must tick, next to a sentence saying the customer agrees to the terms, with the terms linked in a contrasting color. The account or order should not go through until the box is checked.

A well-built sign-in wrap can also work. Put the sentence directly above or below the action button, in readable type, and make it say what the click means: by creating an account, you agree to the terms of service. Name the arbitration clause in that sentence if arbitration is the point.

Then keep the evidence. Archive each version of the sign-up screen with dates, on desktop and mobile. Log the time of each user's assent and the version of the terms in force. A declaration from someone who can authenticate those records often decides the motion. We do not build websites. We assess how a judge is likely to read the one you have.

Updating your terms

New terms do not automatically bind existing customers. A revised arbitration clause posted quietly to the site has the same weakness as a browsewrap. The safer practice is an email notice plus a click-through at the next login, with a record of who accepted and when. Customers who never receive proper notice of the change are generally bound, at most, by the version they accepted.

Subscription businesses face a separate disclosure regime for renewals, which we cover on our page about California's automatic renewal law.

If your business was sued despite its terms

Raise arbitration early. A defendant that litigates for months before invoking its clause invites a waiver argument. Our page on the motion to compel arbitration explains the procedure and timing, and our comparison of arbitration and litigation covers whether arbitration is the better forum for you at all.

The stakes are often larger than one claim. Website privacy suits, including those under the California Invasion of Privacy Act, are frequently pleaded as class actions, and an enforceable arbitration clause with a class waiver changes the case. If the motion fails, the case proceeds in court, as described on our page for a business named in a class action.

What to bring to the first meeting

• Screenshots of the sign-up, checkout, and login pages, desktop and mobile, as they looked when the customer joined.
• Every version of the terms of service, with effective dates.
• Records of the customer's account creation and any acceptance log.
• Notices sent to users about changes to the terms.
• The complaint or demand letter, if you have received one.

Frequently asked questions

Our terms of service are linked in the website footer. Would a California court enforce the arbitration clause against a customer?

Usually not on that basis alone. Courts applying California law treat a footer link as a browsewrap and require proof that the customer had actual knowledge of the terms or that the page gave conspicuous notice and required an act of assent. Without a checkbox or a clear notice next to the button, expect a motion to compel arbitration to be denied.

Are clickwrap agreements enforceable in California?

Generally yes. When a user must click an "I agree" button or check a box after being presented with a link to the terms, California courts usually find mutual assent. The business still has to prove that this user completed that step and what the screen said at the time, so recordkeeping matters as much as design.

What is the difference between clickwrap and browsewrap?

Clickwrap requires an affirmative act, such as checking a box or clicking a button labeled as agreement. Browsewrap requires nothing: the terms are posted behind a link and use of the site is treated as acceptance. California courts generally enforce the first and are reluctant to enforce the second against consumers who never saw the terms.

We added an arbitration clause to our terms last year. Does it apply to customers who signed up before the change?

Only if those customers received adequate notice of the new terms and did something to accept them. In California, posting revised terms without notice is unlikely to bind existing users. An emailed notice combined with a required click-through at the next login is far stronger, and you should keep records showing which customers accepted.

Is a "by clicking you agree" notice enough without a checkbox?

It can be. California courts evaluate these sign-in wrap notices by their conspicuousness: the size and color of the text, its distance from the button, whether the link looks like a link, and how cluttered the screen is. A clear sentence adjacent to the button often suffices. A faint line of small print often does not.

Talk to a California business litigation attorney

If you want to know whether your online terms would survive a challenge, or you have been sued and need to enforce them, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. Related reading: our breach of contract practice page and motions to compel arbitration.

This page provides general information about California law and is not legal advice. Outcomes depend on the design of the website, the facts, and the court.