Part I (Are You Tracking the Hyperlinked Terms in Your Agreement?) discussed the risks created when key provisions in technology contracts are incorporated by reference through hyperlinks.
While monitoring hyperlinked terms after signature remains important, the most effective tactic to mitigate the risks associated with hyperlinked terms is to minimize their importance during your initial negotiations.
Favored Approach: Hardcoding the Terms into the Agreement
The best solution is straightforward: attach the relevant hyperlinked terms as exhibits to the agreement and prevent the vendor from unilaterally modifying the attached version. If a vendor wants a policy, service description, support standard, security commitment, or other incorporated document to apply to the relationship, the customer should require that the document be attached as an exhibit or schedule to the signed agreement. Doing so hardcodes the version that applies as of execution and avoids later disputes about what terms were in effect on the signing date. More importantly, assuming the agreement includes an amendment clause requiring any amendment to be signed by both parties, once those terms are attached to the agreement, they cannot be modified except through a mutually-executed amendment. Review the amendment provision carefully to ensure that the attached hyperlinked terms are not excluded from this requirement. Attaching the linked terms to the agreement and prohibiting the vendor from modifying the contents of the attachment prevents the vendor from making unilateral changes to terms that may affect data use, compliance obligations, service commitments, or legal risk allocation.
Mitigating the Impact of Hyperlinked Terms
If a vendor refuses to attach (or agrees to attach but refuses to negotiate) the hyperlinked terms, the customer must limit their legal effect as much as possible.
Order of Precedence
All hyperlinked terms (whether attached as an exhibit or linked) should be last in the agreement’s order of precedence. The agreement should expressly provide that the terms of the agreement control over all hyperlinked terms in the event of a conflict, inconsistency, or ambiguity. Even when such terms are attached, vendors often refuse or limit edits to such terms. This becomes an even more critical point when the terms are hyperlinked only. If hyperlinked terms are not clearly subordinate to the negotiated agreement, the vendor may later argue that an online update changed the parties’ negotiated agreement even though the customer never approved of that change.
Customers also need to ensure that all issues of concern are affirmatively addressed within the four corners of the agreement itself. If an issue is not addressed in the agreement, the vendor may supplement the agreement by addressing that issue unilaterally in the hyperlinked terms and adopt whatever position best serves its interests. By contrast, if the agreement expressly addresses the issue, then any contrary provision in the hyperlinked terms creates a conflict, and that conflict would be resolved in favor of the negotiated agreement through the order of precedence clause, as described above.
Nullifying Legal Terms Contained in Hyperlinked Terms
Finally, customers should also distinguish between documents that are truly operational or commercial in nature and documents that purport to impose substantive legal terms. If a hyperlinked document is intended to address matters such as technical procedures, platform requirements, support workflows, usage instructions, or commercial ordering mechanics, then, even if attached as an exhibit, as an additional layer of protection, the agreement should state that any legal terms embedded in that document are null and void. In other words, the vendor should not be permitted to bury legal terms in documents that appear operational on their face.
Future Changes
If the hyperlinked terms are not attached to the agreement or are attached to the agreement but not subject to an amendment clause requiring mutually executed amendments, customers should address how future changes to hyperlinked terms will be handled. Ideally, the agreement should require prior written notice of any change and give the customer the right to reject the change or terminate the affected services without penalty if the change is materially adverse. At a minimum, the agreement should prohibit any modification during the term that materially diminishes the vendor’s security, service, support or availability commitments or imposes additional obligations on the customer, including increased fees.
In today’s contracting environment, protecting the deal means more than negotiating favorable language on the signing date. It also means controlling what can and cannot change afterward. Are your vendor agreements set up to preserve the negotiated bargain, or are they leaving too much risk only one hyperlink away?
