No Incorporation By Reference When Terms of Sale on Website Not Specifically Referred To.

The plaintiffs ordered samples of hardwood flooring from the defendant through the defendant's website.  They later followed up with a telephone where they bought over $8,000 of flooring from the defendant.  The defendant emailed a two-page written purchase contract to the plaintiffs which included a bullet point that said that the order was subject to the defendant's "terms of sale."  After installing the flooring, the plaintiffs had an infestation of wood-boring insects that so damaged their home that caused it to be subject to quarantine and possible destruction by the USDA.  The plaintiffs sued for fraud, breach of contract, negligence, trespass, breach of implied warranties of merchantability and fitness for a particular purpose, deceptive trade practices, products liability  and nuisance.  The defendant moved to compel arbitration as required by the terms of sale which were available on the defendant's website and that the terms of sale had been incorporated into the purchase contract by reference.  The court disagreed.  It was insufficient, the court reasoned, for the defendant to merely place quotation marks around the phrase "terms of sale."  The multitude of terms, the court noted, were contained in the four corners of the purchase contract.  A clear reference needed to be made to the terms of sale on the defendant's website.  Walker v. BuildDirect.com, Inc., No. 112075, 2015 Okla. LEXIS 41 (Okla. Sup. Ct. May 5, 2015).

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