United States Court of Appeals
                        For the First Circuit


No. 23-1727

                             JOYCE TOTH,

                        Plaintiff, Appellant,

                                  v.

              EVERLY WELL, INC. and EVERLY HEALTH, INC.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                                Before

                         Barron, Chief Judge,
                  Selya and Howard, Circuit Judges.


     Stefanie L. Ostrowski, with whom Anna C. Haac, Gemma Seidita,
Kristen G. Simplicio, Leora N. Friedman, Tycko & Zavareei LLP,
Zachary Arbitman, Alan M. Feldman, Edward S. Goldis, Feldman
Shephard, Wohlgelernter Tanner Weinstock & Dodig LLP, Jennifer D.
Bennett, Matthew W.H. Wessler, Robert D. Friedman, Alisa Tiwari,
and Gupta Wessler LLP were on brief, for appellant.

     Katherine M. Peaslee, with whom Krysta Kauble Pachman, Susman
Godfrey LLP, Fabien M. Thayamballi, Shapiro Arato Bach LLP, William
F. McGonigle, and Arrowood LLP were on brief, for appellee.
September 25, 2024
            HOWARD, Circuit Judge.   While registering an at-home lab

test on the testing company's website, Joyce Toth clicked on a

checkbox indicating that she read and accepted certain terms and

conditions, which were contained in a linked "User Agreement."

Her representation was only half true.           Toth, like countless

consumers before her, did not read the terms and conditions that

she ostensibly accepted.    Had she reviewed the User Agreement and

documents linked to it, she would have discovered arbitration

provisions (hereafter sometimes referred to collectively as the

"arbitration agreement") covering almost all disputes related to

her use of the test.     Relying on the arbitration agreement, the

district court dismissed Toth's putative class action against the

testing company.   Toth now challenges the district court's ruling,

arguing that no contract was formed between the company and herself

and that, even if one were, the arbitration agreement within was

invalid.    Unfortunately for Toth, however, she formed a valid

"clickwrap" contract with the company when she clicked on the

checkbox.    Accordingly, we affirm.

                                   I.

                                   A.

            Everly Health, Inc. and its subsidiary Everly Well, Inc.

(collectively,    "Everlywell")   sell    health-related   services   and

commodities.     Everlywell offers a wide array of at-home health

tests, but few are more popular than its "Food Sensitivity Test."


                                  - 3 -
Relying   on   a   blood    sample      provided    by    the    user,     the   Food

Sensitivity Test claims to assess the user's "reactivity to 204

common foods that may be causing discomfort" by "measur[ing] [the]

user's    immunoglobulin         G   (IgG)     response   to     various    foods."

Prospective    users       can       purchase    test     kits    directly       from

Everlywell's website or indirectly from retailers, such as in

physical stores or online from Target.               The test kit's packaging

suggests a simple process for obtaining results -- "Purchase

Kit . . . Collect Sample & Send . . . Receive Fast Online Results"

-- but also stipulates that "[p]urchase, registration, and use are

subject to agreeing to the Everlywell User Agreement, which can be

read at everlywell.com/terms[.]"

           Because     the test is designed to be taken at home,

instructions enclosed within each kit explain how to administer

the blood test, how to send the sample to Everlywell's laboratory,

and how to access test results.              The instructions also direct the

user to create an account on Everlywell's website and register the

test kit, warning that "[t]he lab can only process your sample if

you . . . register your kit."             The account-creation page on its

website asks users to input some basic information and then click

a checkbox indicating that they "have read and accept the Terms

and   Conditions[.]"         The      phrase     "Terms   and     Conditions"     is

highlighted in green font and embedded with a link.                  The checkbox

and accompanying text are located directly above the "Create


                                        - 4 -
Account" button, and a user cannot register a kit without first

clicking the checkbox.

              The    "Terms   and   Conditions"   link   connects   users   to

Everlywell's User Agreement.           In its opening sentence, the User

Agreement states that "[b]y clicking on the box, you indicate that

this User Agreement is a binding agreement between you . . . and

Everly Well, Inc. . . . and that you have read and understood the

following terms . . . ."            A few lines below, under the bolded

subheading "Access to the Services and the Site[,]" the User

Agreement stipulates that "[s]ubject to your compliance with the

terms    of   this     User   Agreement . . . Everlywell     grants   you   a

personal,     limited,    terminable,    non-exclusive,    non-transferable

right to access the Site and use the Services[.]"

              The rest of the User Agreement further outlines the

terms.    The "Fees and Payment" section promises that Everlywell

will "refund the applicable fees if, after the applicable review,

a Health Consultant does not authorize and order the test(s) you

requested."         The "Limitation of Liability" section purports to

relieve Everlywell of liability for consequential, punitive, and

other special damages.         It also limits recoverable damages to the

greater of "(i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES

AND (ii) ONE HUNDRED DOLLARS (U.S.)."




                                      - 5 -
           An     arbitration    clause        resides        in    the        "Dispute

Resolution" section of the User Agreement.1                   That section first

requires both Everlywell and the customer to "use their best

e   orts [sic] to settle" any disputes that arise between them.                      It

then sets forth mutual promises to arbitrate "in Austin, Texas, in

accordance with the Commercial Arbitration Rules of the American

Arbitration Association (the 'AAA')[.]"                 Intellectual property

disputes and suits seeking preliminary specific performance or

injunctive relief are excepted from the arbitration provision.

The Dispute Resolution section ends by providing that "fees charged

by the AAA and arbitrator shall be shared equally by the parties."

Following the Dispute Resolution section, the "Governing Law"

section stipulates that Texas law will apply to any disputes

relating to the User Agreement; the "Class Action Waiver" section

bars collective and class actions against Everlywell; and the

"Limitation of Time to File Claims" section imposes a one-year

time bar on users' claims against Everlywell.

           The    User   Agreement,     in    turn,    links       to    three   other

documents: Everlywell's Privacy Notice, Consent for Services, and

Terms of Use.      The Privacy Notice and Consent for Services both

purport   to     give    Everlywell    various        rights       to    its     users'

"de-identified     information,"      and     the     Terms    of       Use    contains


      1Other documents linked to the User Agreement also contain
arbitration clauses that are materially identical to this one.


                                      - 6 -
disclaimers of warranties.        Both the Privacy Notice and Terms of

Use contain unilateral-modification clauses.

                                      B.

           Plaintiff-Appellant        Joyce   Toth     purchased         a   Food

Sensitivity Test from Target's website for $119.99.             Following the

instructions enclosed in the test's box, she then created an

account,   clicked   the   checkbox    indicating     that    she    "read   and

accept[ed]" the User Agreement, and sent her completed kit to

Everlywell's labs.        When she eventually received her results,

though, Toth was confused.         Everlywell reported that she had a

sensitivity to eggs, but Toth had eaten eggs the night before

"without any problem[,]" and the test did not indicate that she

was sensitive to any foods to which she knew that she was allergic.

Toth alleges that her surprising results align with the actual

science underlying the Food Sensitivity Test.                IgG levels, she

contends, do not track an individual's sensitivity to food; rather,

"elevated IgG . . . indicate[s] that a food has been regularly

consumed within the several months before the test."                     If this

contention is true, Everlywell's test does not tell users whether

they are sensitive to certain foods; it only tells users which

foods they have recently eaten.

           Toth   filed    this   putative    class    action       in   federal

district court, alleging that Everlywell "deceptively markets its

tests and misleads consumers into providing their personal medical


                                   - 7 -
information    for     Everlywell’s     commercial     use."    In      response,

Everlywell     moved    to    compel     arbitration    under     the     Federal

Arbitration Act ("FAA") and, alternatively, to dismiss Toth's

complaint. Tasked with the burden of establishing that the parties

entered a valid, enforceable agreement to arbitrate, Everlywell

asserted in part that the parties had formed a "clickwrap" contract

when Toth checked the "I accept" checkbox before creating her

account.     Toth opposed Everlywell's motion, advancing a host of

contractual defenses.        She argued that the User Agreement lacked

consideration because Everlywell had already promised to deliver

her test results; that Everlywell did not provide reasonable notice

of the terms of the contract or secure Toth's assent to it as

required by Massachusetts law; that the contract was "illusory"

because Everlywell retained unilateral-modification power; and

that the arbitration provision was procedurally and substantively

unconscionable.2

           After allowing the parties to conduct partial discovery,

the   district    court      granted     Everlywell's    motion      to   compel

arbitration.     The court held that Everlywell satisfied its burden

of proving that the contract to arbitrate is valid and enforceable

by providing "evidence that Toth affirmatively checked a box


      2Toth also raises arguments based on Massachusetts's unfair
trade practices statute and equitable estoppel. Because she did
not raise these claims below, we decline to address them.     See
Carrozza v. CVS Pharmacy, Inc., 

 (1st Cir. 2021).


                                       - 8 -
accepting its Terms and Conditions[.]"                    And it found Toth's

arguments to the contrary unavailing.             The contract did not lack

consideration, the court reasoned, because Everlywell was not

obligated   to    send   Toth    her   test     results    "at    the    moment   of

purchase[;]" reasonable consumers would expect that they must take

further action, such as collecting and submitting a blood sample,

before Everlywell can perform its contractual obligation.

            The court went on to conclude that, by requiring Toth to

affirmatively check a highlighted "Terms and Conditions" checkbox

on the account-creation page, Everlywell sufficiently notified her

of the contract's terms and secured her effective assent.                   Despite

Toth's claims, the court went on, she did have a "meaningful choice

or opportunity" to reject the terms because the User Agreement

explicitly stated that she was free to turn down the terms.

Further, the court noted that Everlywell's website and Target's

website both authorized returns of the test kit.                       Finally, the

court   dismissed   Toth's      validity     challenge     to    the    arbitration

agreement after noting that her "procedural unconscionability

arguments merely recycle under a new label her same previously

rejected arguments."

            Toth then filed this timely appeal.

                                       II.

            The   FAA    codifies      the     "fundamental      principle     that

arbitration is a matter of contract."             Rent-A-Center, W., Inc. v.


                                       - 9 -
Jackson, 

, 67 (2010).            It provides that arbitration

agreements in commercial contracts "shall be valid, irrevocable,

and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract."            Id. (quoting 

).   Thus, so long as a federal court is "satisfied that the

making of the agreement for arbitration or the failure to comply

therewith is not in issue," the court must order parties to

arbitrate any claims subject to the agreement.               

.

           This doctrinal rule reaffirms federal courts' authority

to   determine   the   existence    and     validity    of     an   arbitration

agreement.   Farnsworth v. Towboat Nantucket Sound, Inc., 

 (1st Cir. 2015).    But it also limits the scope of potential

challenges to arbitration clauses.          

   Because a mutual promise

to arbitrate constitutes effective consideration, an arbitration

agreement can be severed from an otherwise ineffectual contract.

Rent-A-Center, 561 U.S. at 70-71.         This means in part that a party

seeking to avoid arbitration usually must show that the arbitration

clause itself is invalid.     Id.    A challenge to "another provision

of the contract, or to the contract as a whole, does not prevent

a court from enforcing a specific agreement to arbitrate."                   Id.

That said, a party may still challenge the contract's formation.

If an "agreement between [the parties] was [not] concluded,"

neither was an arbitration agreement within that contract. Buckeye

Check Cashing, Inc. v. Cardegna, 

, 444 n.1 (2006).


                                   - 10 -
           Under       this    framework,         a     court      has   a     somewhat

straightforward        task       when    presented         with     a    "delegation

clause" -- an agreement to submit to arbitration those issues

relating   to    the     scope,     validity,         and   enforceability       of   an

arbitration agreement.         First Options of Chi., Inc. v. Kaplan, 

 (1995).         The FAA treats these clauses like any other

arbitration agreement.         Bossé v. N.Y. Life Ins. Co., 

,

27 n.7 (1st Cir. 2021).           Thus, whenever parties form a valid and

enforceable delegation agreement, the FAA compels courts to send

the entire action to arbitration.            

 ("[W]here the parties

'by   clear     and      unmistakable       evidence'        delegate        issues   of

arbitrability to the arbitrator, 'the courts must respect the

parties' decision as embodied in the contract' and send the issue

to the arbitrator to decide." (quoting Henry Schein, Inc. v. Archer

& White Sales, Inc., 

 (2019))); see also

Coinbase, Inc. v. Suski, 

, 

, 1194 (2024)

("In cases where parties have agreed to only one contract, and

that contract contains an arbitration clause with a delegation

provision, then, absent a successful challenge to the delegation

provision,      courts     must    send     all   arbitrability          disputes     to

arbitration.”).        The party opposing arbitration can then only




                                         - 11 -
challenge the formation of the contract or the specific validity

of the delegation provision.3      Rent-A-Center, 561 U.S. at 71.

          Toth lodges both formation and validity challenges.        She

contends that she and Everlywell never formed a contract and, by

extension, never formed an agreement to arbitrate.       Alternatively,

she argues that the unilateral-modification clauses render any

contract illusory and that various terms in the User Agreement

render the arbitration agreement unconscionable.

          "In   reviewing   the   district   court's   resolution   of   a

motion to compel arbitration, we review legal issues de novo and

factual determinations for clear error."      Canales v. CK Sales Co.,

 (1st Cir. 2023) (citing Fraga v. Premium Retail

Servs., Inc., 

 (1st Cir. 2023); and Cullinane v.

Uber Techs., Inc., 

 (1st Cir. 2018)).4



     3    The parties agree that the contractual questions are
governed by Massachusetts law.
     4    Toth asks us to apply instead a summary-judgment
standard, remanding if we find any disputed material facts.
Although we "normally . . . accept the district court's findings
of fact subject only to clear error review[,]" Toth correctly
identifies that when the district court makes no factual findings,
we "accept only those facts that are effectively undisputed, and
otherwise identify those factual disputes that need be resolved,
much as if we were ruling on a grant of summary judgment." Fraga,

. Here, the district court made a finding on the
only disputed fact -- whether Toth could return her test. Thus,
the summary-judgment standard is inapplicable. And even if it did
apply here, Toth's proposed standard would not affect the outcome
of her appeal because, as we explain in Part II.A.2., whether Toth
could return the test is immaterial.


                                  - 12 -
                                           A.

               We turn first to formation. To determine whether parties

have     formed     a     contract,        Massachusetts     courts    apply   a

reasonableness test, "focusing on whether the contract provisions

at issue 'were reasonably communicated and accepted.'"                Kauders v.

Uber Techs., Inc., 

, 1048-49 (Mass. 2021) (quoting

Ajemian v. Yahoo!, Inc, 

 (Mass. App. Ct. 2013)).

That is, the party against whom the contract is being enforced

must have (1) received "reasonable notice of the terms" and (2)

"reasonabl[y] manifest[ed] . . . assent to those terms."                 

               Applying   this     test,    Massachusetts    courts   "regularly

enforce[]" so-called "clickwrap" contracts.                  Id. at 1049.      A

clickwrap contract is an online agreement that requires a user to

affirmatively accept its terms by clicking a checkbox but does not

require the user to view or scroll through those terms. Cullinane,

 n. 10.        Courts distinguish clickwrap contracts from

"browsewrap" contracts, in which "the online host dictates that

assent    is     given    merely    by     using   the   site[;]"   "scrollwrap"

contracts,      in which     "users . . . physically scroll through an

internet agreement and click on a separate 'I agree' button in

order to assent to the terms and conditions of the host website[;]"

and "sign-in-wrap" contracts, in which "assent to the terms of a

website" is "couple[d] . . . with signing up for use of the site's




                                         - 13 -
services[.]"      

 (quoting Berkson v. Gogo LLC, 

,

394–95 (E.D.N.Y. 2015)).

            Due    to   their     similarity         to   traditional      written

contracts,      clickwrap      contracts       usually        create    equivalent

contractual obligations.          1 Corbin on Contracts § 2.12 (2023)

("From a contract law perspective, there is little controversy

surrounding     clickwrap     agreements.      They     are   generally    akin   to

signing     a   traditional     pen   and      ink    contract.").        And     the

reasonableness test reflects this. Requiring users to signal their

agreement by clicking a checkbox "puts the user on notice that the

user is entering into a contractual arrangement," satisfying the

notice prong, and "[r]equir[es] an expressly affirmative action,"

satisfying the assent prong.          Kauders, 159 N.E.3d at 1050-51; see

also Bekele v. Lyft, Inc., 

 (D. Mass.

2016), aff'd, 

 (2019) (“Massachusetts courts have

routinely concluded that clickwrap agreements -- whether they

contain   arbitration    provisions      or     other     contractual     terms    --

provide users with reasonable communication of an agreement's

terms.”).

            Everlywell presented its arbitration clauses to Toth as

a part of a clickwrap contract.          To register her food-sensitivity

test, Toth had to "click 'I agree,' but [did] not necessarily [have

to] view the contract to which she [was] assenting."                    Cullinane,

 n. 10 (quoting Berkson, 

).


                                      - 14 -
And like most clickwrap contracts, the User Agreement, including

the arbitration agreement within, is a validly formed contract

under Massachusetts law.

                                 1.

           First, the account-creation page gave Toth proper notice

of the contract.   The language next to the checkbox indicates that

users must read and accept the terms and conditions, signifying to

users that they are entering into a contractual arrangement, and

the terms themselves are linked.   Although Toth maintains that she

did not read the User Agreement, "[i]n Massachusetts courts, it

has long been the rule that '[t]ypically, one who signs a written

agreement is bound by its terms whether [s]he reads and understands

them or not[,]'" especially when the offeror provides inquiry

notice.   Awuah v. Coverall N. Am., Inc., 

 (1st Cir.

2012) (second alteration in original) (quoting St. Fleur v. WPI

Cable Sys./Mutron, 

 (Mass. 2008)); see also Good

v. Uber Techs., Inc., SJC-13490, slip op. at 34-35 (Mass. June 7,

2024) ("We do not require, for purposes of reasonable notice, that

the user actually scroll through the terms.").        And we have

previously acknowledged that "requiring users to click a box

stating that they agree to a set of terms, often provided by

hyperlink, before continuing to the next screen" is "a common

method of conspicuously informing users of the existence and

location of terms and conditions[.]"    Cullinane, 

;


                               - 15 -
see also 15 Corbin on Contracts § 83.5 (2023) ("The overriding

authorities suggest that clicking a box indicating that 'I have

read and agreed to [the] User Agreement & Terms of Service' is

enough    to    put   a   reasonable    user    on   notice   that   there   were

contractual terms applicable to the usage of the site.").

               Toth maintains that a "fact-intensive inquiry" into the

circumstances reveals that the website does not provide proper

notice.        She relies on Kauders, a Supreme Judicial Court of

Massachusetts ("SJC") opinion which, in her view, establishes that

customers signing up for online services should not reasonably

expect to subject themselves to "extensive terms and conditions,"

such as an arbitration provision. 159 N.E.3d at 1051.                  Kauders,

however, does not sweep so broadly.             The SJC did not conclude that

an online-service contract could never notify a customer of an

arbitration provision.        It merely clarified that the unique nature

of online-service contracts requires courts to "carefully consider

the interface and whether it reasonably focused the user on the

terms and conditions."          Id. at 1051-52.         The user-registration

page in that case, the court held, did not sufficiently focus its

users on the terms and conditions that it was attempting to

enforce.       Id. at 1054.

               The same is not true of Everlywell's account-creation

page.    The Kauders court specifically distinguished the browsewrap

contract at issue from clickwrap contracts, recognizing that the


                                       - 16 -
latter "alert users to the significance of their actions."            Id. at

1051.   Further, Everlywell's terms and conditions are far more

conspicuous than    those in the       putative   contract at issue in

Kauders.   On the user-registration pages in that case, the link to

the terms and conditions appeared on a separate payment screen,

not a general account-creation screen; "other terms on the same

screen" had "a similar or larger size, typeface, and . . . more

noticeable attributes[;]" and a user could have reasonably clicked

through the payment screen without scrolling down to the terms and

conditions.   Id. at 1053-54 (quoting Cullinane, 

).

On Everlywell's account-creation page, by contrast, the linked

terms and conditions are bolded in green, directly above the

"Create My Account" button, and next to a checkbox that users must

click before creating an account.

           Toth also contends that Everlywell's account-creation

page does not reasonably convey the nature of the contract.             Even

if Everlywell's website does notify users that they are entering

into a contract, she argues, a reasonable consumer would infer

that the contract "relate[s] only to terms for using an account on

Everlywell's site[,]" not terms for using a test kit.

           Toth   cites   only   one   case   holding   that   a   clickwrap

contract did not sufficiently notify users of an arbitration

clause's scope, Applebaum v. Lyft, Inc., 

(S.D.N.Y. 2017), which has little import here.          Applebaum applied


                                  - 17 -
New   York   law    to   invalidate   a    clickwrap    contract   that    was

hyperlinked, in very small font, on a page titled "Add Phone

Number."5     

.      Reasonable users, the court concluded,

would assume that the terms and conditions related only to Lyft's

use of their phone numbers.         

    The User Agreement here is not

so misleading.      It appears on the "Account Creation" page, which

users must access to receive their results, and Toth fails to

explain why, notwithstanding that distinction, Applebaum would

dictate the result here.       A reasonable user would understand that

the terms and conditions on Everlywell's site applied to use of

the test kit.

                                      2.

             Second, Everlywell secured meaningful assent from Toth

when it required her to click the checkbox before creating her

account.     As the SJC has reiterated, clickwrap contracts are the

"clearest manifestations of assent" because they require users to

affirmatively      signal   their   acceptance   of    the   attached   terms.

Kauders, 159 N.E.3d at 1050; see also Hughes v. McMenamon, 

 (D. Mass. 2002) (collecting cases).               And Toth




      5   It is unclear whether Massachusetts courts impose as
rigorous a notice requirement as New York courts. See Wickberg v.
Lyft, Inc., 

, 183 n.2 (D. Mass. 2018) (finding
the notice analysis in Applebaum "unpersuasive, as [it] appl[ies]
New York . . . law, and not the law of Massachusetts").


                                    - 18 -
admits that she clicked the checkbox affirming that she read and

accepted the User Agreement.

              Toth     nevertheless     maintains      that     she   did    not

meaningfully assent to the contract.           In her view, "consumers had

no ability to reject Everlywell's contracts" because they could

not always return the test kits after purchase.               She contends that

she was forced to decide between assenting to the User Agreement

or forfeiting the benefit of the test she had already paid for.6

But this supposition relies on the premise that Everlywell had a

pre-existing obligation to provide Toth the benefit of the test,

and Toth does not defend that premise in any developed way.                  Toth

purchased the test from Target, not Everlywell.                The only source

Toth points to for Everlywell's purported obligation to her is

Everlywell's "express warranty" that it would provide results to

customers who purchased the test.          But, as Everlywell points out,

the box containing the test Toth purchased stated on its exterior

that "[p]urchase, registration, and use are subject to agreeing to

the       Everlywell    User   Agreement,      which     can     be   read    at


      6   Toth also frames this arrangement as lacking new
consideration, because the only consideration that Everlywell
purported to give in exchange for Toth's promise to arbitrate is
a set of services it was already obligated to provide. But the
User Agreement contained "bilateral obligations that independently
constitute valid consideration[,]" Solo-Fonalledas v. Ritz-Carlton
San Juan Hotel Spa & Casino, 

 (1st Cir. 2011),
including Everlywell's mutual promise to arbitrate. Toth's only
response, which boils down to questioning the adequacy of the
consideration, is unsupported by any authority.


                                      - 19 -
everlywell.com/terms[.]"    And while the parties dispute whether

that disclaimer was shown on Target's website, even if we assume

that it was not, Toth never explains why that omission on Target's

part would result in Everlywell having an obligation to Toth based

on having made an express warranty.     Thus, Toth has failed to show

that Everlywell owed a pre-existing obligation to her and thereby

failed to show that Everlywell coerced her assent by threatening

non-performance.

            Toth also charges Everlywell with failing to make clear

through its contracts that users can reject the User Agreement and

receive a refund.   "[A]ny purported assent is meaningless[,]" Toth

claims, if users do not know that they can receive a refund.    This

principle derives from the theory of "rolling" contracts: sales

contracts with terms that the seller conveys to the buyer after

the sale.    See DeFontes v. Dell, Inc., 

 (R.I.

2009); ProCD, Inc. v. Zeidenberg, 

 (7th Cir.

1996).   The jurisdictions that recognize these contracts hold the

customer to the post-sale terms when the customer has "a right to

return the [product] if the terms are unacceptable." 7     ProCD, 

.


     7    Many states do not adopt a rolling-contract theory. See
15 Corbin on Contracts § 83.5 (2023) ("[T]he 'money now, terms
later' line of cases, or the 'rolling contract' theory, upsets the
usual chronology of contract formation and is controversial.");
Howard v. Ferrellgas Partners, L.P., 

 (10th Cir.
2014).


                               - 20 -
                 Even   if    we    assume,    albeit    without    deciding,       that

Massachusetts recognizes rolling contracts,8 we discern no reason

to hold clickwrap contracts to a similar standard.                       The right to

return plays an essential role in a customer's assent to a rolling

contract.          When a retailer notifies its customers of their right

to reject post-sale terms by returning a product, and a customer

continues to use that product after purchase, a court can assume

that       the   customer     accepted   the    terms.      See    id.   at   1452-53;

DeFontes, 

.               Clickwrap contracts, on the other

hand, provide much stronger evidence of the customer's assent --

that the customer affirmatively clicked on the checkbox.                       Thus, a

court need not determine whether the customer's use of the product

signaled assent to the post-sale terms.

                 Had Toth sued Everlywell before creating an account, her

case       would    present    an    intriguing    assent    question:        Did   Toth

effectively accept the User Agreement by buying and using the test

without attempting to return it?                  Instead, her case presents a

much more straightforward question, easily answered by Toth's

admission that she clicked the checkbox.




       8  The cases cited by the parties reveal little on this
score. Compare Feeney v. Dell Inc., 

 (Mass. App. Ct.
2015) (unpublished) (enforcing a money-now-terms-later contract);
with Casavant v. Norwegian Cruise Line, Ltd., 

 (Mass. App. Ct. 2001) (refusing to enforce additional terms
after sale).


                                         - 21 -
                                          B.

             Having determined that Toth and Everlywell formed a

contract through the User Agreement, we turn next to the validity

of   the   arbitration    agreement         contained     within   that     contract.

Recall     that   the   FAA    requires      Toth   to    "challenge[] . . . the

validity of the specific agreement to resolve the dispute through

arbitration" and not merely "the validity of an entire contract

which contains an arbitration clause[.]"                 Farnsworth, 

 (emphasis added).      Our first step, then, is to analyze the scope

of the parties' agreement to arbitrate.

             We concur with the district court's conclusion that the

parties agreed to arbitrate issues of arbitrability, including the

validity    and   scope   of    the    arbitration        agreement.        The   User

Agreement states that disputes shall be resolved "in accordance

with the Commercial Arbitration Rules of the American Arbitration

Association (the 'AAA')[.]"             And other cases are "clear that

incorporation of the AAA arbitration rules constitutes clear and

unmistakable      evidence      of    the      parties'    intent      to   delegate

arbitrability issues to the arbitrator."                  Bossé, 992 F.3d at 29.

Indeed, the AAA rules provide that the arbitrator must hear any

"objections with respect to the existence, scope, or validity of

the arbitration agreement or to the arbitrability of any claim or

counterclaim."      Com. Arb. Rules & Mediation Procs. R-7(a) (2013).

A court can therefore consider validity challenges such as Toth's


                                      - 22 -
only insofar as they apply to the delegation provision -- the

provision incorporating the AAA arbitration rules.9               See Bossé,

992 F.3d at 27-28.

                                      1.

            Toth   first   argues    that     the    unilateral-modification

clauses render the User Agreement an illusory contract.                    Her

argument, however, is foreclosed by our decision in Emmanuel v.

Handy Technologies, Inc., 

 (1st Cir. 2021).

There, a house cleaner claimed that a unilateral-modification

clause   contained    in    her     employment       contract   rendered    an

arbitration clause within that contract unconscionable.            

 at 3-

4, 10-11.     We were not persuaded, holding that, "as a matter of

substantive    federal     arbitration       law,"   the   unconscionability

challenge "must be considered by the arbitrator in the first

instance." 

 (internal quotations omitted). The employer,

we reasoned, did not use the modification clause to revise the

arbitration provision, and the house cleaner did not "contend that


     9    Toth claims that Everlywell waived any argument that the
User Agreement delegates validity challenges. According to her,
in its motion to compel arbitration, "the only issue Everlywell
contended was delegated to the arbitrator was the scope of the
arbitration clause -- not its validity."     Everlywell's alleged
waiver is of no moment, though, because the arbitration agreement
"clear[ly] and unmistakabl[y]" delegates issues of validity to the
arbitrator by incorporating the AAA rules. Bossé, 992 F.3d at 29.
And we are "at liberty to affirm a district court's judgment on
any ground made manifest by the record, whether or not that
particular ground was raised below." United States v. George, 

 (1st Cir. 2018).


                                    - 23 -
the unconscionability of the modification clause so infects the

Agreement that severing that clause would effectively rewrite the

bargained-for exchange as to arbitration."      

            Toth falls prey to the same trap.   Not only is it unclear

whether the unilateral-modification provisions even apply to the

arbitration clause, but Toth also does not assert that Everlywell

modified the arbitration clause, nor that the modification clauses

would    "rewrite   the   bargained-for   exchange[.]"    

     Thus,

regardless of the merits of her illusoriness challenge to the User

Agreement as a whole, it is a subject for an arbitrator and not a

court.

                                  2.

            Second and finally, Toth contends that the arbitration

agreement is unconscionable and therefore unenforceable against

her.     Massachusetts courts apply a "lower threshold for finding

unconscionability" to contracts of adhesion, such as clickwrap

contracts.    Good, SJC-13490, slip op. at 47 n.41.      However, under

Massachusetts law, a contract is unconscionable if, and only if,

it is both substantively and procedurally unconscionable.       Machado

v. System4 LLC, 

, 414 (Mass. 2015); Bekele v. Lyft,

Inc., 

 (1st Cir. 2019).           And Toth fails to

meet Massachusetts's lower standard because she has not shown that

the delegation provision itself is substantively unconscionable.




                                - 24 -
           Toth flags a litany of provisions in the User Agreement

that she claims renders the arbitration provisions substantively

unconscionable.     She argues that because the damages limitation

caps her recovery to the test's price, but arbitration would cost

her at least $1,700, she will always lose money in arbitration.

Toth also explains that the shortened statute of limitations, the

scope provision (which she claims sends to arbitration only claims

that a customer would likely bring), and the forum-selection clause

collectively create an arbitration process that favors Everlywell.

           The Supreme Court considered a similar challenge in

Rent-A-Center.      Despite having signed an arbitration agreement

with his employer, the plaintiff-employee there sought to keep his

employment-discrimination suit in federal court by arguing that

the agreement was unconscionable. 561 U.S. at 66. The arbitration

agreement was substantively unconscionable, he contended, because

it applied only to claims that an employee would bring, contained

a fee-splitting arrangement, and limited his ability to conduct

discovery.   Id. at 73-74.     The Court disagreed, explaining that

the plaintiff-employee "did not make any arguments specific to the

delegation provision;" rather, he argued that these aspects of the

arbitration agreement "rendered the entire Agreement invalid."

Id. at 74 (emphasis in original).       Thus, the Court concluded that

the   arbitration   panel   must    decide   whether   the   rest   of   the

arbitration agreement was unconscionable.


                                   - 25 -
              So too here.        Toth identifies many allegedly one-sided

provisions      in    the   dispute-resolution       section     of    the    User

Agreement, but none make the delegation provision itself unfair or

somehow restrict Toth's ability to challenge the validity of the

arbitration agreement before an arbitrator.               Toth does target the

AAA    clause    insofar     as    its     cost-sharing   rules,      along   with

Everlywell's damages limitation, ensure that she loses money.                  But

this damages limitation affects Toth's eventual recovery; it does

not affect Toth's ability to challenge (in arbitration, pursuant

to the delegation provision) the validity of the parties' agreement

to arbitrate the merits of her dispute.              See id. (rejecting the

same argument).       The same is true of the clauses shortening the

statute of limitations and dictating which claims are subject to

arbitration.

              Only one provision cited by Toth affects the parties'

ability to adjudicate arbitrability issues: the forum-selection

clause requiring Toth to arbitrate the validity of the arbitration

clause in Texas, Everlywell's home state.                  Yet, she does not

explain how litigating in Texas oppresses her.                 See Bekele, 

     (1st       Cir.     2019)    (defining        substantive

unconscionability as "terms [that] are oppressive to one party").

Thus, Toth has not demonstrated that the agreement to arbitrate is

invalid.




                                         - 26 -
                    III.

For the foregoing reasons, we affirm.




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