Can a binding contract be formed merely with a link to another
set of terms? (For background on this topic, check out our earlier
What, exactly, is a browsewrap? which
of service and EULAs).
PCS asserted that these separate terms were incorporated
into the signed paper contract, since they function as a
clickable hyperlink in the electronic version. The court
disagreed: "In order for there to be a proper and enforceable
incorporation by reference of a separate document . . . the party
to be bound by the terms must have had 'knowledge of and
assented to the incorporated terms.'" Here, there
was no independent assent to the additional Terms and Conditions,
and the mixed media nature of the contracting process worked
against PCS. In addition to the fact that the separate terms
were not easily accessible by the customer, the text was not clear.
It merely said "Download Terms and Conditions", without
providing reasonable notice to the customer that assent to the main
contract included assent to these additional terms. The additional
terms were not
binding on the customer.
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