Contractual Pitfalls of Ancillary Documents, Attachments, and Exhibits: Resolving Inconsistencies
Drafting Cross Reference and Incorporation by Reference Provisions: Definitions

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Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Commercial Law
- event Date
Wednesday, November 13, 2019
- schedule Time
1:00 PM E.T.
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Live Online
On Demand
This CLE course will provide practical guidance to counsel on the legal pitfalls of contract supplements, such as attachments, exhibits, cross references, and incorporation by reference. The panel will provide examples of how to draft enforceable provisions and discuss cases addressing these issues.
Faculty

Mr. Cohen has 36 years of experience as a lawyer. His practice focuses on drafting and reviewing legal documents, advising on and facilitating transactions, helping clients and lawyers improve their documents, and teaching innovative CLE classes. Mr. Cohen’s diverse legal career includes service as an Air Force Judge Advocate, service as a Special Assistant U.S. Attorney, seven years as a prosecutor, over 10 years as a municipal judge, and private practice. He served as the Chairperson of the Editorial Board of The Colorado Lawyer and taught advanced legal writing at the University of Arkansas School of Law. Mr. Cohen wrote six articles for the Am.Jur. Proof of Facts series, including the leading article on piercing the corporate veil. He is the founder of The Plain English Institute.

Ms. Everett-Garcia has 20 years of experience representing a wide variety of clients in business litigation matters, with particular emphasis on contract claims, trade secret disputes, class action defense and business torts, including negligence, fraud and fiduciary duty claims. Her experience extends to state and federal court matters, jury and non-jury trials, appeals, arbitrations and government investigations. Ms. Everett-Garcia also often represents foreign companies in contract and business tort litigation brought in U.S. courts and arbitration proceedings. She is a frequent author and speaker on a variety of legal issues.
Description
In commercial contracts, it is commonplace for parties to assume that unless the agreement explicitly provides for incorporation, schedules, exhibits, and other ancillary attached documents, they do not constitute part of that contract. Incorporation by reference provisions are often poorly drafted and result in extrinsic materials being incorporated into the agreement and given equal weight with provisions directly contained in the contract.
Further, in increasingly digital and electronic transactions, more companies are providing their standard terms and conditions of sale or purchase online for review by suppliers and customers. While incorporating online terms by reference can create consistency of terms across contracts and purchase orders--and provide counterparties with easy access to such terms--this practice raises issues of enforceability, especially where online terms are modified with little or no notice to the counterparty.
In Affinity Internet Inc. v. Consolidated Credit Counseling Services Inc. (Fla. Dist. Ct. App. 2006), the court noted that the doctrine of incorporation "requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document ... [and a] mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporation document makes no specific reference that it is 'subject to' the collateral document."
Listen as our authoritative panel of transactional practitioners guides counsel on the legal pitfalls of contract supplements--including attachments, exhibits, cross-references, and incorporations by reference--and provides examples of how to draft enforceable provisions to avoid contracting traps.
Outline
- Overview
- Attachments
- Exhibits
- Cross references
- Incorporations by reference
Benefits
The panel will review these and other noteworthy issues:
- What are the best practices for incorporating ancillary documents, attachments, schedules, and exhibits?
- How have courts interpreted these provisions?
- What strategies should attorneys consider when drafting these clauses?
- Which types of provisions present the most significant challenges for businesses and their counsel?
- What pitfalls should attorneys watch out for when using various ancillary documents?
- How can incorporation by reference provisions result in unintended consequences?
- What special rules govern online terms and conditions?
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