Incorporation by Reference of Terms and Conditions: Notice, Objection, Emphasis, Enforceability, Clear Reference Test

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, October 25, 2022

Recorded event now available

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Course Materials

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.


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 incorporation by reference set of 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. Concerning contracting with the government, it is not considered best practice, while 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 and any terms of services and best practices when an existing agreement presents issues due to such a clause.



  1. Incorporation by reference
    1. Requirement for enforceability
      1. Clear and express language
      2. Agreed and assented to by both parties
    2. Case law
      1. Limitations
    3. 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 rather than incorporated by reference?


Jacobson, Julia
Julia B. Jacobson

Squire Patton Boggs

Ms. Jacobson helps clients maximize the value of their strategic relationships by drafting and negotiating a wide range...  |  Read More

Yamada, Masaki
Masaki James (Saki) Yamada

Ahlers Cressman & Sleight

Mr. Yamada’s practice focuses on preparing and negotiating construction contracts (public and private), resolving...  |  Read More

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