Consumers and businesses routinely enter into binding contracts
by means of both paper agreements and online
"click-through" agreements. But what happens when you
face a "hybrid" contract? Can a binding contract be
formed merely with a link to another set of terms?
The answer is clear... it depends. Consider the American case
of Holdbrook Pediatric Dental, LLC, v. Pro Computer
Service, LLC (PCS). This decision considered the
enforceability of a set of terms which were "linked" from
a paper hard-copy version of the contract.
In Holdbrook Pediatric, PCS sent a contract to its
customer electronically. The customer printed out the paper
version, signed it in hard copy and sent it back. Near the
signature line, a hyperlink appeared pointing to a separate set of
Terms and Conditions in HTML code. Of course, on the paper copy
these terms could not be hyperlinked. It was simply a static line
typed out on the paper copy that appeared like this:
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
In this contract, 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
in the paper version, 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 Court held that these additional terms were not binding on
Want to hear more? For more background on this topic, check out
our earlier post entitled "What, exactly, is a browsewrap?" which
of service and end-user license agreements.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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