Some time ago I wrote about the “battle of the forms” — the legal dispute that arises between buyers and sellers when each parties’ “standard terms and conditions,” contained in their respective purchase orders and invoices, are in conflict.  The full post can be read here.  Typically, those standard terms and conditions are found on the back of the purchase orders and invoices in small print.  Recently, however, some buyers and sellers are foregoing the small type on the back of their forms and merely referencing a website where their terms and conditions can be found.  Such a provision may look something like this:

The Terms and Conditions, which are incorporated into this Purchase Order by reference, are located at http://xxx.xxxx.com (the “Website”), and Supplier acknowledges receipt, review and acceptance of the Terms and Conditions.

Since first seeing this type of provision, I’ve wondered about its legality and prudence.  After all, the provision is essentially asking the other party to visit a website, which can be changed at anytime without notice, in order to understand the terms of the parties’ agreement.

However, in a recent Michigan Court of Appeals case, Taurus Mold, Inc. v. TRW Automotive US, LLC (unpublished), such a provision was assumed to be enforceable, as a matter of law, without much discussion.  The lower court was “not convinced by plaintiff’s argument that the Terms and Conditions were ‘secret’ and ‘hidden’ since they were on defendant’s website, as plainly stated under each Purchase Order,” and the Court of Appeals apparently agreed.

The full opinion from the Court of Appeals can be read here.

–Matt