306 FEDERAL REPORTER, 3d SERIES
tence of contract embodying the arbitra-tion clause.
Arbitration is matter of contract andparty cannot be required to submit to arbi-tration any dispute which he has notagreed so to submit.
Unless parties clearly provide other- wise, question whether agreement createsduty for parties to arbitrate particulargrievance is issue for judicial determina-tion.
In deciding whether parties agreed toarbitrate certain matter, court should gen-erally apply state-law principles to issue of contract formation.
9. Federal Courts
Appellant could not argue for firsttime on appeal that district court erred indeciding question of contract formation asa matter of law.
10. Federal Courts
Appellate court will not consider issueraised for first time on appeal.
11. Federal Courts
District court had ample record todecide question of reasonable notice andobjective manifestation of assent as a mat-ter of law, including affidavits and exten-sive deposition testimony by each namedplaintiff, numerous declarations by counseland witnesses, dozens of exhibits, oral ar-gument supplemented by computer dem-onstration and additional briefs followingoral argument.
Under California law, in order to be acontract, transaction requires manifesta-tion of agreement between the parties.
Under California law, mutual manifes-tation of assent, whether by written orspoken word or by conduct, is touchstoneof contract.
Sale of tangible goods over the Inter-net is governed by Article 2 of UniformCommercial Code (UCC). U.C.C. § 2–101et seq.
Under California law, offeree, regard-less of apparent manifestation of his con-sent, is not bound by inconspicuous con-tractual provisions of which he is unaware,contained in document whose contractualnature is not obvious.
Under California law, principle of knowing consent applies with particularforce to provisions for arbitration.
Under California law, if party wishesto bind in writing another to agreement toarbitrate future disputes, such purposeshould be accomplished in way that eachparty to arrangement will fully and clearlycomprehend that agreement to arbitrateexists and binds parties thereto.
California contract law measures as-sent by objective standard that takes intoaccount both what offeree said, wrote, ordid and transactional context in which of-feree verbalized or acted.
Under California law, Internet usersdid not agree to be bound by software’slicense terms, which included arbitrationclause, by acting upon invitation to down-load software free from producer’s web-