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Incorporating by reference? Be sure you can lay hands on the exact incorporated terms in the future

Imagine that you’re a supplier whose order form incorporates terms and conditions by reference to your Web site. And then imagine that years later you get into a lawsuit with the customer where you need to rely on a warranty disclaimer in the incorporated T&Cs.

But you can’t put your hands on a copy of the T&Cs as they existed at the time the contract was signed — and the customer says to the court, in effect, how do we know that the terms and conditions on the Web site now are the same ones that were in effect when we signed the contract?

Exactly this happened in an Eighth Circuit case; fortunately for the supplier, the court was willing to overlook that little bit of awkwardness. Morgantown Machine & Hydraulics of Ohio, Inc., v. American Piping Prods., Inc., No. 16-3834, slip op. at 6 (8th Cir. Apr. 5, 2018) (affirming dismissal on the pleadings; contract’s incorporation-by-reference language was sufficiently clear to incorporate a disclaimer of implied warranties).

Drafting lesson: If you incorporate material by reference to your Web site, be sure to keep a copy (or copies) of the incorporated material; alternatively, you could try submitting the page in question it to an archival site such as the Internet Archive’s Wayback Machine (www.archive.org) — in which case you should definitely donate to that worthy non-profit organization.

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