Specht v. Netscape Commc'ns Corp. , 306 F.3d 17, 26(2d Cir. 2002)

Schnabel v. Trilegiant Corp. , 697 F.3d 110, 118 (2d Cir. 2012).

Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 229 (2d Cir. 2016).

Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms. Schnabel, 697 F.3d at 120; Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014). Whether a reasonably prudent user would be on inquiry notice turns on the "[c]larity and conspicuousness of arbitration terms," Specht, 306 F.3d at 30; in the context of web-based contracts, as discussed further below, clarity and conspicuousness are a function of the design and content of the relevant interface. See Nicosia, 834 F.3d at 233.

Thus, only if the undisputed facts establish that there is "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms" will we find that a contract has been formed. See Specht, 306 F.3d at 35.

Here, the question of arbitrability arose in the context of a motion to compel arbitration. Courts deciding motions to compel apply a "standard similar to that applicable for a motion for summary judgment." Id. (quoting Bensadoun v. Jobe–Riat, 316 F.3d 171, 175 (2d Cir. 2003)). On a motion for summary judgment, the court "consider[s] all relevant, admissible evidence submitted by the parties and contained in 'pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits,'" Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002) (quoting Fed. R. Civ. P. 56(c)) (second alteration in original), and draws all reasonable inferences in favor of the non-moving party. Nicosia, 834 F.3d at 229.