Walker v. BuildDirect.com Technologies, Inc.
2015 OK 30
| Okla. | 2015Background
- In May 2008 the Walkers ordered hardwood flooring from BuildDirect; they signed and returned a two‑page written "Quotation" that described the goods and included 14 bullet‑point terms. One bullet stated: "All orders are subject to BuildDirect's 'Terms of Sale.'"
- BuildDirect maintained a separate online "Terms of Sale" (accessible via a hyperlink on its website) that included an arbitration clause selecting Canadian arbitration law.
- After installation the Walkers discovered insect infestation in the flooring and sued in federal court asserting fraud, breach of contract, negligence, warranty and related claims; they sought class treatment and a jury trial.
- BuildDirect moved to compel arbitration based on incorporation of the online "Terms of Sale" into the written Quotation; the district court denied the motion, finding the contract ambiguous as to incorporation.
- The Tenth Circuit certified the narrow question to the Oklahoma Supreme Court: whether a written consumer contract that says it is "subject to" the seller's "Terms of Sale," but does not identify or locate an extrinsic document, incorporates a separate online "Terms of Sale."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Quotation incorporated BuildDirect's online "Terms of Sale" by reference | Walker: no notice or assent to online terms; Quotation itself contained the parties' full agreement | BuildDirect: the phrase "subject to BuildDirect's 'Terms of Sale'" put buyers on notice and incorporated the online document | Held: No — incorporation failed because reference was not clear, identity/location of the external document was not ascertainable beyond doubt, and there was no evidence of notice/assent |
| Whether a vague internal reference (quotation marks only) suffices for incorporation | Walker: vague reference insufficient to bind consumer to additional terms | BuildDirect: quotation marks and phrase were sufficient to alert buyer to extrinsic terms | Held: Vague allusion is insufficient; express reference or clear identification is required |
| Whether failure to attach or identify location of external terms defeats incorporation | Walker: absence of attachment or location prevents incorporation | BuildDirect: physical attachment not required; web location implied | Held: Location must be ascertainable beyond doubt; unreferenced web terms not incorporated |
| Standard for incorporation by reference under Oklahoma law | Walker: require clear reference, identity, and assent | BuildDirect: argue broader incorporation principles apply | Held: Oklahoma adopts the Williston formulation: (1) clear reference to the extrinsic document, (2) identity and location ascertainable beyond doubt, and (3) parties had knowledge of and assented to incorporation |
Key Cases Cited
- Continental Supply Co. v. Levy, 247 P. 967 (Okla. 1926) (recognizes incorporation by reference when properly shown)
- Monkey Island Dev. Auth. v. Staten, 76 P.3d 84 (Okla. Civ. App. 2003) (incorporation by express language can bind to external provisions)
- High Sierra Energy, L.P. v. Hull, 241 P.3d 1139 (Okla. Civ. App. 2010) (applies incorporation principles where express language used)
- One Beacon Ins. v. Crowley Marine Serv., Inc., 648 F.3d 258 (5th Cir. 2011) (Internet‑hosted terms still governed by traditional contract principles; notice and assent required)
- Thompson v. Bar‑S Foods Co., 174 P.3d 567 (Okla. 2007) (Federal Arbitration Act and state‑law contract formation principles interact when assessing arbitration clause enforcement)