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Affinity Internet, Inc., d/b/a SkyNetWeb v. Consolidated Credit Counseling Services, Inc.

No. 4D05-1193 (Fla. Dist. Ct. App. 4th Dist., March 1, 2006)

Plaintiff Not Bound To Online User Agreement That Parties' Written Contract States It Is Subject To

Affirming the court below, a Florida District Court of Appeals holds that the plaintiff is not bound by the terms of an online user agreement, despite the fact that the written contract between that parties expressly states that it was "subject to all of SkyNetWeb's terms, conditions, user and acceptable use policies" located at a designated website.  As a result, the District Court of Appeals affirmed the denial of defendant's motion to compel arbitration, given that the arbitration provisions on which defendant relied were only contained in the Online User Agreement held not to be part of the parties' contract.

No Obligation To Arbitrate  

Consolidated Credit Counseling Services, Inc. ("Consolidated Credit") entered into a written agreement with Affinity Internet, Inc. d/b/a SkyNetWeb ("SkyNetWeb") for the provision of computer and web hosting internet services.  Dissatisfied with SkyNetWeb's performance, Consolidated Credit commenced suit.

SkyNetWeb responded with a motion to compel arbitration.  SkyNetWeb claimed that plaintiff had agreed to be bound to terms of a User Agreement found on SkyNetWeb's website in the parties' written contract, which provided that "this contract is subject to all of SkyNetWeb's terms, conditions, user and acceptable use policies located at company/legal/legal.php."  As that User Agreement contained an arbitration clause, SkyNetWeb asserted, plaintiff was obligated to arbitrate its dispute.

The Court below held that the Online User Agreement was not part of the parties' contract.  Because the parties' written agreement did not contain an agreement to arbitrate, the lower court accordingly denied defendant's motion to compel arbitration.  This decision was affirmed by the District Court of Appeals. 

The Appellate Court rested this determination on its conclusion that the language of the parties' written agreement - which stated that it "was subject to" the online user agreement -was an insufficient expression of their intention to incorporate the User Agreement into the contract.  The Court found further support for its decision in the fact that the Online User Agreement has neither been annexed, nor provided, to Consolidated Credit, and in fact was not found at the exact URL noted in the parties' written agreement.

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