Remote contracting with customers through the internet is either the current reality or the aspirational goal for many businesses. This article addresses the current state of the law governing a key link to remote contracting — hyperlinks — with the goal of advising how to successfully incorporate by reference separate contract terms using hyperlinks for purposes of contract formation. (Whether use of hyperlinks can be successfully employed to convey disclosures that are subject to placement or “clear and conspicuous” disclosure requirements is a separate question, not addressed here.)
A hyperlink is an electronic link contained in one document that provides direct access to either a different location in the same document, or to another document. Businesses may want to present terms and conditions through a hyperlink for a variety of reasons, the most salient of which are practical space limitations on presenting contractual terms on mobile devices; attempting to achieve a more friendly, attractive and acceptable customer experience; and a desire to be able to modify contractual terms more flexibly from time to time by posting changes on the web, both for existing and future customers.
To read full article on Law360, click here.