Incorporation by Reference of Terms and Conditions: Notice, Objection, Emphasis, Enforceability, Clear Reference Test
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Commercial Law
- event Date
Thursday, July 24, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- 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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The CLE webinar will guide counsel on the validity of terms incorporated by reference. The panel will discuss the rise of online terms and conditions incorporated into agreements and how to clarify that the parties had knowledge of and assented to the incorporated terms. The panel will review best practices when reviewing contracts with hidden terms and what is necessary for enforceability when clients wish to use incorporation by reference.
Ms. Jacobson is a partner in the Data Privacy, Cybersecurity & Digital Assets Practice. She offers practical and tactical counsel on privacy and cybersecurity compliance strategies, data breach response, technology transactions and marketing initiatives for national and multinational organizations. Ms. Jacobson assists clients with the design and development of privacy-sensitive policies for the collection and use of personal data. She regularly advises businesses on the privacy and cybersecurity aspects of environmental, social and governance (ESG) programs, ethical data use, machine learning and artificial intelligence, vendor contracting and management and business sales, combinations and acquisitions.
Ms. Lustig is an experienced legal professional currently serving as Associate General Counsel at Global Partners LP since 2022. Prior to this role, she held the position of Senior Corporate Counsel at EG America from 2019 to 2022, where responsibilities included negotiating and drafting commercial contracts and providing risk management counsel to various business teams. Ms. Lustig's experience also encompasses roles at Cumberland Farms as Senior Corporate Counsel and Assistant Secretary, and at The Cumberland Gulf Group as Corporate Counsel. Earlier in the career, she spent over a decade at Mintz Levin as Of Counsel, offering strategic advice on environmental law compliance and real estate transactions. Ms. Lustig holds a J.D. from the University of Virginia School of Law and a degree from Tufts University.
A common tenet of contract law is that the terms of the agreement are contained within the four corners of the page. Increasingly, whether an agreement is online or physically presented, it includes a simple phrase: "You agree that your use of these services is governed by this agreement and the terms of service located on our website." This incorporation by reference leads to future claims and disputes, as those online terms often contain hidden and draconian clauses, such as auto-renewals, additional costs, and more.
When reviewing an agreement with a set of incorporation by reference terms and conditions, counsel must clarify if the parties had knowledge of and assented to the incorporated terms.
Case law has clarified that an incorporation by reference clause will be strictly construed. If the clause places limits, such as "all prices are subject to [Company's] terms and conditions," then a form-selection clause would not be enforceable. When contracting with the government, it is not considered best practice, but it is possible to incorporate by reference.
Listen as our authoritative panel discusses best practices when reviewing a contract that attempts to incorporate by reference any terms of services and best practices when an existing agreement presents issues due to such a clause.
I. Incorporation by reference
A. Requirement for enforceability
- Clear and express language
- Agreed and assented to by both parties
B. Case law
- Limitations
C. Best practices
The panel will discuss these and other relevant topics:
- What grounds can invalidate an incorporation by reference clause?
- What recent cases have limited the enforceability of an incorporation by reference clause?
- When contracting with the government, what practices should be utilized instead of incorporation by reference?
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