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Affinity Internet Inc. v. Consolidated Credit Counseling Services, Inc., 920 So.2d 1286 (Fla. App. 2006) (full-text).
Factual Background Edit
Affinity Internet Inc, d/b/a SkyNetWEB (Affinity) entered into a contract in which it provided computer and web hosting services to Consolidated Credit Counseling Services, Inc. (Consolidated). The contract between the parties did not have an arbitration clause but instead stated “This contract is subject to all SkyNetWEB’s terms, conditions, user and acceptable use policies located at http://www.skynetweb.com/company/legal/legal.php.” The user agreement referred to on the website had an express arbitration agreement. A copy of the user agreement was not attached to the contract.
Trial Court Proceedings Edit
Consolidated filed a complaint alleging breach of contract among other claims. Affinity then made a motion to compel arbitration under an alleged arbitration clause. Consolidated opposed the motion arguing that the collateral documents were not part of the contract. The trial court held there was no valid written agreement to arbitrate and that the collateral document was “neither expressly referred to nor sufficiently described by the contract.”
Appellate Court Proceedings Edit
The doctrine of incorporation requires that a contract or incorporating document express an intention to be bound by a collateral document. A mere reference to the document is insufficient particularly when the incorporating document makes no specific reference that it is "subject to" the collateral document. Furthermore, to incorporate a collateral document, the contract must sufficiently describe or refer to the collateral document such that it would be interpreted as part of the writing.
The collateral document was neither expressly referred to nor sufficiently described by the contract. Although the contract stated it was "subject to" the collateral document, that was held insufficient to incorporate the document. There was no evidence to show an intention to incorporate. The trial court's holding was affirmed.