ATLANTIC FABRICATION & COATINGS, INC. VS. ISM/MESTEK (L-3727-17, BERGEN COUNTY AND STATEWIDE) ( 2021 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0500-19
    ATLANTIC FABRICATION
    & COATINGS, INC.,
    Plaintiff-Appellant,
    v.
    ISM/MESTEK,
    Defendant-Respondent.
    ________________________
    Argued December 9, 2020 – Decided November 12, 2021
    Before Judges Ostrer, Accurso and Enright.
    On appeal from the Superior Court of New Jersey,
    Law Division, Bergen County, Docket No. L-3727-17.
    Paul Faugno argued the cause for appellant (Faugno &
    Associates, LLC, attorneys; Paul Faugno, on the
    brief).
    Matthew J. Tharney argued the cause for respondent
    Mestek Machinery, Inc., (Sattiraju & Tharney, LLP,
    attorneys; Matthew J. Tharney, of counsel and on the
    brief; Steven B. Gladis, on the brief).
    The opinion of the court was delivered by
    OSTRER, P.J.A.D.
    In this commercial contract dispute, we consider whether an equipment
    seller's written contract successfully incorporated by reference terms that were
    available only on the seller's website. The incorporated terms barred claims
    against the seller for consequential damages if the seller breached. Based on
    that provision, the trial court granted the seller partial summary judgment and
    dismissed a buyer's claim for damages it incurred after the equipment
    malfunctioned. The court later denied the buyer's motion for reconsideration
    and granted summary judgment dismissing the complaint.
    We hold that to enforce incorporated-by-reference online terms, the
    foundational agreement must clearly and conspicuously state that additional
    online terms supplement it; the agreement must provide clear directions for
    locating those online terms, so they may be identified without doubt; and the
    party to be bound must assent.      As the seller here did not satisfy those
    requirements, we reverse.
    I.
    Extending all favorable inferences to plaintiff Atlantic Fabrication &
    Coatings, Inc. ("Atlantic") as the non-moving party, Brill v. Guardian Life Ins.
    A-0500-19
    2
    Co. of Am., 
    142 N.J. 520
    , 540 (1995), we discern the following facts from the
    summary judgment record, including the parties' statements of material facts
    and their responses, see R. 4:46-2.
    Atlantic and defendant ISM/Mestek ("Mestek") 1 crossed paths because
    Atlantic was interested in producing piping and ducts for heating ventilation
    and air conditioning ("HVAC") systems, and Mestek sells equipment used in
    such production. Eventually, Mestek as "Seller" offered to sell to Atlantic as
    "Buyer" two machines — an "Oval-Max Roller 3" machine ("Oval Roller"),
    used "to produce round and oval shaped blanks," and a "D-Max 1.2 E
    Tubeformer Machine" ("Tubeformer"). The Oval Roller cost $29,990 and the
    Tubeformer cost $104,220. Mestek made the offer in a written "quotation" its
    sales manager attached to an email to Atlantic.
    The written quotation referred to another document.           Below a major
    heading, "ADDITIONAL SALES COVENANTS ('Sales Covenants')," was a
    sub-heading (the fourth of four) entitled "Terms and Condition of Sale"; under
    that sub-heading, the quotation stated, "This quotation and all sales hereunder
    shall be governed by the Seller's Machinery Terms and Conditions of Sale
    1
    Mestek asserts that "Mestek Machinery, Inc." is the correctly named party.
    But we note that "ISM Machinery, Inc.[,] a Mestek Machinery, Inc. company"
    identified itself as "Seller" in an offer to sell the equipment at issue to Atlantic.
    A-0500-19
    3
    posted on the Seller's website (www.ismmachinery.com) and the Sales
    Covenants contained in this quotation." That was not the only reference to the
    "Seller's Machinery Terms and Conditions of Sale."           In the first of three
    paragraphs under the first sub-heading, "Price and Payment Schedule," the
    quotation also stated, "For additional details regarding pricing and payment,
    please refer to Seller's Machinery Terms and Conditions of Sale." But the
    quotation did not refer to the website.
    Although Atlantic did not sign the quotation to demonstrate its
    acceptance (Mestek representatives did sign), Atlantic admitted in response to
    Mestek's partial summary judgment motion that it accepted the offer and
    Mestek was paid $134,000.
    But the transaction was actually more complicated than that. Although
    Atlantic alleged in its complaint that it "entered into a contract with [Mestek]
    to purchase" the two machines, Mestek actually sold the two machines to an
    equipment    financing    company,        Scottrade   Bank   Equipment    Finance
    ("Scottrade"), which in turn leased the machines to Atlantic with an option to
    buy them for $1 after sixty monthly payments.          Atlantic acknowledged as
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    4
    much in its motion for reconsideration, when it asserted that it leased the
    machines from Scottrade and denied signing a contract with Mestek. 2
    Atlantic alleged the Oval Roller was delivered months after the
    Tubeformer (though it said the two machines were designed to work together),
    and the Oval Roller malfunctioned.         Efforts to repair it were unavailing.
    Although Mestek eventually replaced the Oval Roller with an operational
    machine, Atlantic claimed it lost numerous business opportunities in the
    meantime. Atlantic sold the replacement machine. Then, Atlantic sued to
    recover its lost profits, which an expert later estimated ranged between
    $212,146 and $353,577. Atlantic asserted claims of breach of contract, breach
    2
    Three months after sending the Oval Roller quotation, Mestek sent an
    invoice to Atlantic for both machines. But four days after that, Scottrade
    issued a purchase order that identified itself as "Buyer," Atlantic as
    "Customer," and Mestek as "Vendor." Notably, the purchase order's terms and
    conditions include Mestek's warranty that the machines were merchantable and
    fit for their intended purpose and an integration clause stating that the purchase
    order was the "complete and exclusive statement" of the parties' agreement and
    superseded any prior agreement. However, Mestek's responsive "order
    acknowledgement" stated, "This sale shall be governed by the Seller's TERMS
    AND        CONDITIONS        OF     SALE      posted    on     Seller's    website
    (www.mestekmachinery.com)," which "superseded" any inconsistent
    provisions in the buyer's order forms. (Notably, the document title and URL
    differ from those in the quotation.) Atlantic also entered into a lease
    addendum authorizing Scottrade to pay for the machines before delivery and
    acceptance, and waiving any claim against Scottrade if the equipment was not
    fully operational.
    A-0500-19
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    of implied warranty, breach of the implied covenant of good faith and fair
    dealing, and fraud.
    Mestek eventually invoked a limitation of liability provision in its
    standard "Machinery Terms and Conditions of Sale," which barred claims for
    consequential damages. The enforceability of that provision lies at the heart of
    this case.
    It is undisputed that if one scrolled down to the bottom of the website
    accessed at www.ismmachinery.com around the time Mestek sent its
    quotation, one would find a link in small type for "Terms & Conditions" — but
    no link for "Seller's Machinery Terms and Conditions of Sale" as the quotation
    stated. Clicking on the "Terms & Conditions" link brought the visitor to a
    document entitled "Machinery Terms and Conditions of Sale" — not "Seller's
    Machinery Terms and Conditions of Sale."         That ten-page, single-spaced
    document included at page eight, paragraph sixteen, the limitation on liability
    provision, which states:
    16.   LIMITATION OF LIABILITY
    BUYER UNDERSTANDS AND ACKNOWLEDGES
    THAT SELLER SHALL NOT BE LIABLE FOR ANY
    SPECIAL,        DIRECT,         INDIRECT,
    CONSEQUENTIAL, PUNITIVE OR INCIDENTAL
    DAMAGES OF ANY KIND, OR LABOR,
    EXPENSES,     LOST      PROFITS     LOST
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    6
    OPPORTUNITIES, OR SIMILAR DAMAGES OF
    ANY KIND; AND REGARDLESS OF THE LEGAL
    THEORY OR CAUSES OF ACTION BY WHICH
    CLAIMS FOR ANY SUCH DAMAGES AS SET
    FORTH IN THE ENTIRETY OF THE ABOVE
    SECTION ARE ADVANCED, WHETHER OR NOT
    SELLER HAS BEEN ADVISED OF THE
    POSSIBILITY OF ANY SUCH DAMAGES.
    Atlantic owner Ehren Steingart certified that after he noted the
    quotation's "reference to the website reflecting sales machine terms and
    conditions," he "did go to the website yet [he] was not able to locate any
    posted terms and conditions on the defendant's website." He said he only
    found the "Terms & Conditions" link after the litigation began.          Steingart
    "assumed that all the contractual terms were all contained in the documents"
    that had been provided.
    Mestek's     counsel   certified,       "An   archived   version   of    the
    ismmachinery.com website from February 9, 2014 is available via the Internet
    Archive,      at      https://web.archive.org/web/2014020941517/http://www.
    ismmachinery.com." 3 He added, "A true and correct copy of that archived
    3
    "The Internet Archive is a nonprofit online digital library" that offers "access
    to past internet websites," by "using automated software programs known as
    crawlers, which surf the Web and intermittently store copies of internet files,
    which are then preserved in the archive." Bacon v. Avis Budget Grp., Inc.,
    
    357 F. Supp. 3d 401
    , 431 n.23 (D.N.J. 2018). Notably, the archived website
    predates the one referenced in the quotation by several months. Mestek sent
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    website is attached . . . ."   In that copy, below Mestek's various product
    offerings, a copyright notice and ISM Machinery's address and phone numbers,
    one could find the "Terms & Conditions" link among several other links. In
    relatively small type, there were links for "Home," "Contact Us," "Sitemap,"
    "Terms of Use," "Terms & Conditions," and "Non-Machinery Terms &
    Conditions."    Counsel certified that "[a] user clicking on the 'Terms and
    Conditions' link would be brought to a PDF titled 'Machinery Terms and
    Conditions of Sale.'"
    In response, Atlantic's counsel attached a depiction of the website with
    the URL https://www.mestekmachinery.com/brands/ism-machinery, apparently
    dated January 28, 2019 (in the midst of this litigation), which includes a link
    for "Terms & Conditions" below a 2016 copyright notice, to the right of links
    for "Contact," "Great Moments," and "Facilities."
    In granting Mestek partial summary judgment and dismissing Atlantic's
    consequential damage claims, the trial court agreed the website's heading for
    the quotation in June 2014, and the deal closed with Scottrade over three
    months after that. Furthermore, we presume counsel is simply conveying what
    he found on the Internet Archive, as opposed to verifying that the archived
    website is in fact what was viewable at ismmachinery.com in February 2014.
    Cf. Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 1:6-6 (2022)
    ("Affidavits by attorneys of facts not based on their personal knowledge but
    related to them by and within the primary knowledge of their clients constitute
    objectionable hearsay.").
    A-0500-19
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    "Terms & Conditions" was not conspicuous, but the quotation's reference to
    additional terms was. The judge found that the quotation contained a bold -
    type heading that referred to terms and conditions and alerted the reader "there
    are terms and conditions on the website." The judge also found that with one
    click on the "Terms and Conditions" link on the website, one would reach the
    terms and conditions that included the limitation on liability for consequential
    damages.
    The judge framed the legal issue to be "whether or not the placement of
    the link where it was could be perceived or proven to have been placed with a
    goal of making a buyer disinclined to find out what he was agreeing to." The
    judge then found that standard did not apply "in a business transact ion when
    notice that there are additional terms that are part of the contract is very clearly
    set forth in a two-page document." The judge concluded Atlantic could not
    "avoid the applicability of the term by the fact of where the link is on the web
    page to get to those terms and conditions."
    Atlantic sought reconsideration. Highlighting its lease with Scottrade
    and noting that no one from Atlantic signed the quotation, Atlantic evidently
    argued that the quotation and the incorporated-by-reference online terms were
    A-0500-19
    9
    unenforceable under the Statute of Frauds. 4 In denying the motion, the trial
    court held that Atlantic could have raised the Statute of Frauds issue in
    opposing Mestek's motion, and, therefore, Atlantic inappropriately raised the
    argument for the first time in its reconsideration motion. The court did not
    reach the merits of the Statute of Frauds argument.
    The court later granted Mestek's motion for summary judgment. The
    court noted that its partial summary judgment order foreclosed Atlantic from
    recovering consequential damages; and Atlantic accepted the replacement
    machine and resold it.
    This appeal followed.      Atlantic contends the trial court erred in
    enforcing the limitation-of-liability provision. Atlantic disputes there was a
    meeting of the minds, noting how Mestek made it difficult to find the
    incorporated document. Atlantic contends the quotation and the incorporated
    terms violated the Statute of Frauds and the trial court erred in denying its
    reconsideration motion.      Atlantic also argues summary judgment was
    premature because it sought discovery on Mestek's website design, and
    4
    Mestek has supplied us Steingart's certification supporting the
    reconsideration motion. But we do not have Atlantic's supporting brief, and no
    oral argument was heard. We gather Atlantic argued Statute of Frauds based
    on the court's subsequent written opinion denying the motion.
    A-0500-19
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    Atlantic contends for the first time that the quotation was a contract of
    adhesion.
    II.
    No doubt, contracting parties may agree to bar consequential damage
    claims. See Kearney & Trecker Corp. v. Master Engraving Co., 
    107 N.J. 584
    ,
    591-92 (1987); N.J.S.A. 12A:2-719(3) (stating "[c]onsequential damages may
    be limited or excluded unless the limitation or exclusion is unconscionable,"
    and adding that "limitation of damages where the loss is commercial is not"
    "prima facie unconscionable").
    The principal issue here is, did Mestek successfully incorporate the
    additional terms and conditions that included that bar? Applying the same
    summary judgment standard as the trial court, R. 4:46-2, and owing no
    deference to the trial court's legal conclusions, Henry v. N.J. Dep't of Hum.
    Servs., 
    204 N.J. 320
    , 330 (2010), we conclude Mestek did not.
    The issue is legal.   The enforceability of a contract term is a legal
    question.   Goffe v. Foulke Mgmt. Corp., 
    238 N.J. 191
    , 207 (2019).            In
    particular, "[a]lthough it is clear that whether one agreement has incorporated
    another has factual components, whether material has been incorporated
    A-0500-19
    11
    presents a question of law." 11 Williston on Contracts § 30:25 (Lord ed.
    2012).5
    Our cases have long held that contracting parties may agree to
    incorporate a second document into a first, even if the parties sign only the
    first. See, e.g., Keller v. Homan, 
    136 N.J. Eq. 228
    , 229 (E. & A. 1945);
    Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 
    410 N.J. Super. 510
    ,
    533 (App. Div. 2009); Johnson & Miller v. Buck, 
    35 N.J.L. 338
    , 345 (Sup. Ct.
    1872).    We have held that there are three requisites to enforcing an
    incorporated-by-reference document: the main document must clearly refer to
    the second, incorporated document; the main document must identify the
    incorporated document with such precision that it may be identified without
    doubt; and the parties must know and assent to the incorporated document.
    Alpert, Goldberg, 
    410 N.J. Super. at 533
    .
    5
    We recognize that whether parties mutually assented to contract terms may
    present a fact question. See Bater v. Cleaver, 
    114 N.J.L. 346
    , 351 (E. & A.
    1935). But the issue here is not what the parties in fact did (or did not do) to
    express their assent (although it is undisputed that Atlantic did not sign the
    quotation). Rather, the dispositive issue is the effectiveness of Mestek's
    method for incorporating terms into the document Atlantic said it accepted.
    As we discuss, one of factors is the adequacy of the notice of the
    incorporation. In other contexts, we have held that presents a legal issue too.
    See Caspi v. Microsoft Network, 
    323 N.J. Super. 118
    , 126 (App. Div. 1999)
    (stating that "[t]he issue of reasonable notice regarding a forum selection
    clause is a question of law for the court").
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    We so held by adopting Williston's summary of the law:
    Generally, all writings which are part of the same
    transaction are interpreted together. One application
    of this principle is the situation where the parties have
    expressed their intention to have one document's
    provision read into a separate document. So long as
    the contract makes clear reference to the document
    and describes it in such terms that its identity may be
    ascertained beyond doubt, the parties to a contract
    may incorporate contractual terms by reference to a
    separate, non-contemporaneous document, including a
    separate agreement to which they are not parties, and
    including a separate document which is unsigned. . . .
    And, in order to uphold the validity of terms
    incorporated by reference, it must be clear that the
    parties to the agreement had knowledge of and
    assented to the incorporated terms.
    [Alpert, Goldberg, 
    410 N.J. Super. at 533
     (alteration
    in original) (quoting 4 Williston on Contracts § 30:25
    (Lord ed. 1999)).]6
    This statement is consistent with our prior case law. See Keller, 
    136 N.J. Eq. at 229
     (stating "[t]he determinative question is whether that
    [incorporated] document is sufficiently identified by the language of [the main
    document] . . . to be considered as expressing and including the agreement
    between the parties"); Johnson & Miller, 35 N.J.L. at 345 (stating that the main
    document must "so clearly or definitely refer to the writing, that by force of
    6
    This summary of the law is virtually unchanged in the current version of
    Williston. 11 Williston on Contracts § 30:25 (Lord ed. 2012).
    A-0500-19
    13
    the reference the writing itself becomes part of the instrument which refers to
    it" (citation omitted)); see also Bacon v. Avis Budget Grp., Inc., 
    357 F. Supp. 3d 401
    , 417-19 (D.N.J. 2018) (applying Alpert, Goldberg to deny enforcement
    of car rental terms contained in a "rental jacket" that the rental agreement
    incorporated by reference).
    In Alpert, Goldberg, we held that a retainer agreement did not
    successfully incorporate the firm's "standard billing practices and firm
    policies," which the firm offered to provide upon request. 
    410 N.J. Super. at 520, 535
    . We did so because the retainer agreement "did not define with
    sufficient specificity" the incorporated terms; "[t]he reference contained no
    document dates or an identifiable publication number"; and there was "no
    indication that the terms of the proposed incorporated document were known
    or assented to by [the] defendants." 
    Id. at 535
    .
    Similarly, in Bacon, the court found that a car rental agreement did not
    "describe the Rental Jackets in such a way that it [was] clear beyond doubt that
    they were incorporated." 357 F. Supp. 3d at 417-18. The court noted the
    disconnect between the title of the document — "Rental Jacket" — which the
    underlying rental agreement purported to incorporate, and the actual title of the
    document that the defendant asserted was incorporated — "Rental Terms and
    A-0500-19
    14
    Conditions." Id. at 418. Even within the allegedly incorporated document, the
    term "Rental Document Jacket" — not "Rental Jacket" — was used. Ibid.
    The heightened scrutiny of incorporated documents is evidently designed
    to assure there is an actual meeting of the minds and to discourage sharp
    practices.   "Incorporation by reference may be used as a tool to obtain
    contractual rights without expressly bargaining for them. Even if a party reads
    a form proffered by the other, that diligence may not extend to asking for and
    further reviewing something incorporated by reference."         Royce de R.
    Barondes, Side Letters, Incorporation by Reference and Construction of
    Contractual Relationships Memorialized in Multiple Writings, 64 Baylor L.
    Rev. 651, 661 (2012). Thus, "[o]ne inclined to sharp dealing might seek to
    obtain surreptitiously contractual rights by incorporating by reference
    advantageous terms." Id. at 654.
    We have found no reported New Jersey authority applying these
    principles to a case like this — where a hard copy of the main contract
    purports to incorporate a second document available only on the internet. But
    our courts have addressed issues that arise when contracting occurs entirely on
    the internet. In Wollen v. Gulf Stream Restoration & Cleaning, LLC, ___ N.J.
    Super. ___, ___ (App. Div. 2021) (slip op. at 2), we refused to enforce an
    A-0500-19
    15
    arbitration agreement in a suit by a homeowner against a contractor referral
    service. We held the hyperlink to "Terms & Conditions" containing arbitration
    provisions "did not provide reasonable notice of HomeAdvisor's terms and
    conditions to the reasonably prudent internet user." Id. at ___ (slip op. at 25).
    Furthermore, the hyperlink did not indicate "that the user was required to read
    the terms and conditions before submitting her request for service."        Ibid.
    Relying on Alpert, Goldberg, we held that the required proof of knowledge and
    assent was absent.    Id. at ___ (slip op. at 26-27); see also Hoffman v.
    Supplements Togo Mgmt., LLC, 
    419 N.J. Super. 596
    , 611 (App. Div. 2011)
    (refusing to enforce forum selection clause that was contained in a disclaimer
    the defendant "submerged" at the bottom of a webpage where the consumer
    would be unlikely to view it before completing a transaction).
    By contrast, our courts have upheld contracts executed online where the
    party was required to affirmatively assent to the terms in one way or another.
    See Skuse v. Pfizer, Inc., 
    244 N.J. 30
    , 56-58, 61 (2020) (enforcing an
    arbitration agreement the employer delivered by email that "highlighted" the
    proposed agreement, "provided a conspicuous link" to it, and required the
    employer to click to acknowledge assent); Caspi v. Microsoft Network, 
    323 N.J. Super. 118
    , 122-24 (App. Div. 1999) (enforcing a "click-wrap" agreement
    A-0500-19
    16
    that required the consumer to click "agree" to preceding terms before
    proceeding to the next step in the contracting process).
    Applying these principles, Mestek's incorporation by reference of its
    terms and conditions falls short. We acknowledge that the quotation clearly
    and conspicuously alerted Atlantic that additional terms governed the sale of
    the machines.    But the quotation did not provide sufficient information to
    enable Atlantic to identify the incorporated terms beyond doubt. 7 As in Bacon,
    there exist discrepancies in the naming of the documents. In its quotation,
    Mestek identified the incorporated document as "Seller's Machinery Terms and
    Conditions of Sale." 8 But the only link on the website that could lead someone
    to the document reads "Terms & Conditions." Furthermore, the "Terms &
    Conditions" link was inconspicuously located at the bottom of the webpage.
    The letters are not bolded (unlike most other links); the font size is the
    smallest of any text on the page; and the link sits crammed between other links
    in a way that increases the likelihood it could be overlooked. Furthermore, its
    7
    Nor did the quotation tell Atlantic what the incorporated terms covered,
    particularly, its exclusion of liability for consequential damages. That has
    particular significance under the Uniform Commercial Code (UCC) which we
    discuss separately below.
    8
    Perhaps, Mestek intended "Seller's" to modify the title, as opposed to be a
    part of it. But, at best, Mestek's choice of language created ambiguity.
    A-0500-19
    17
    placement might lead a reader to think it pertains to terms and conditions
    governing the use of the website itself.
    While someone comfortable with navigating websites might have
    ultimately found the "Seller's Machinery Terms and Conditions of Sale"
    document — although titled "Machinery Terms and Conditions of Sale" —
    Steingart certified without dispute that he could not. Thus, Steingart lacked
    knowledge of its terms and did not assent to them.
    We recognize that "in the absence of fraud, one who does not choose to
    read a contract before signing it, cannot later relieve himself [or herself] of its
    burdens." Henningsen v. Bloomfield Motors, Inc., 
    32 N.J. 358
    , 386 (1960).
    But that rule is not inviolate "in the framework of modern commercial life and
    business practices." 
    Ibid.
     In particular, the duty to read rule makes no sense
    without a realistic chance to read. See 7 Corbin on Contracts § 29.12 (Perillo
    ed. 2002) (explaining that under modern cases, "true assent does not exist
    unless there is a genuine opportunity to read the clause in question").
    Practically speaking, Steingart lacked a realistic chance to read the
    incorporated terms and conditions.
    We also recognize that Steingart could have asked Mestek's sales
    manager directly for a copy (although the quotation did not expressly invite
    A-0500-19
    18
    such a request). But in Alpert, Goldberg, even an explicit statement that an
    incorporated document was available upon request was not enough to salvage
    an attempted incorporation by reference. With less effort than Steingart would
    have expended to request the document, Mestek could have easily provided it
    in the first place, by attaching it to the same email that included the quotation.
    Alternatively, Mestek could have provided a document-specific link, with an
    "html" or "pdf" extension that, with one click, would have taken Steingart
    directly to the document.     We can think of no excuse for omitting such
    extensions, other than to make it more difficult — and thus, less likely — that
    the other party would find and read the document.
    Other courts have scrutinized the incorporation of online terms, with
    varying results. See, e.g., Kent D. Stuckey & Robert L. Ellis, Internet and
    Online Law § 1.02[4] (2021) (citing cases); Nathaniel P. Mark, Caught in the
    Web: The Incorporation and Enforceability of Extra-Contractual Online Terms
    and Conditions, 26 S.C. Law. 22, 24-27 (May 2015) (citing cases); Barondes,
    64 Baylor L. Rev. at 657-67 (citing internet cases among others). Synthesizing
    the various cases, Mark, in Caught in the Web, states that incorporated by
    reference online terms and conditions will be enforceable
    provided that 1) the writing clearly and conspicuously
    identifies the source of the online terms and conditions
    A-0500-19
    19
    so that the contracting party may review them should
    it so choose (e.g., www.xxxco.com/xxxcot&c.htm); 2)
    expressly incorporates the online terms and conditions
    into the body of a written document; and 3) contains
    attestation language stating the contracting party
    intends to be bound by those terms.
    [26 S.C. Law. at 27.]
    That rule is consistent with the one we have articulated here. 9
    Mestek misplaces reliance on two out-of-state cases: International Star
    Registry of Illinois v. Omnipoint Marketing, LLC, 
    510 F. Supp. 2d 1015
     (S.D.
    Fla. 2007), and One Beacon Insurance v. Crowley Marine Services, 
    648 F.3d 258
     (5th Cir. 2011).
    The court in International Star Registry enforced a choice-of-law-and-
    forum provision that the defendant included in its website's terms and
    conditions section, which the defendant's invoice incorporated by reference.
    
    510 F. Supp. 2d at 1021
    . The invoice stated: "By my signature below, I
    certify that I have read and agree to the provisions set forth in this invoice and
    to        the          terms        and       conditions           posted         at
    http://www.omnipointmarketing.com/genterms.html, and that I am duly
    9
    Notably, the author suggests that a link with a document-specific extension
    like "htm" is required to satisfy the rule.
    A-0500-19
    20
    authorized to bind the following organization ('client') to such provisions." 
    Id. at 1019
    .
    For two reasons, the case does not support enforcing Mestek's website
    terms.     First, the defendant identified the incorporated document with far
    greater specificity than Mestek did here. Rather than direct the client to the
    defendant's website and require the client to navigate to the incorporated terms
    as Mestek did in its quotation, the defendant included a link to the specific
    document, "genterms.html," which enabled the client to ascertain "beyond
    doubt" the incorporated document. International Star Registry, 
    510 F. Supp. 2d at 1019
    ; see Alpert, Goldberg, 
    410 N.J. Super. at 533
     (citation omitted).
    Second, the defendant also assured the client had "knowledge of and assented
    to the incorporated terms," by requiring the client to certify that it read and
    agreed to them. International Star Registry, 
    510 F. Supp. 2d at 1019
    ; Alpert,
    Goldberg, 
    410 N.J. Super. at 533
     (citation omitted). By contrast, Mestek did
    not require such certification.
    In One Beacon, the court affirmed the trial court's enforcement of
    website terms that a repair service order ("RSO") incorporated. 648 F.3d at
    267-70. The defendant, a barge and tugboat company, issued the RSO to a
    barge repairer.     Id. at 261, 263.      It stated that it was "ISSUED IN
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    21
    ACCORDANCE WITH THE PURCHASE ORDER TERMS & CONDITIONS
    ON     WWW.CROWLEY.COM/DOCUMENTS                    &    FORMS,      UNLESS
    OTHERWISE AGREED TO IN WRITING."                  Id. at 263.   To access the
    incorporated document, the repairer had to go to www.crowley.com, and click
    on the "Documents & Forms" link on the menu bar. Ibid. Once there, the
    repairer had to select "Vendor Relations" from a drop-down menu and then
    select "Purchase Order Terms and Conditions." Ibid.
    One might question the ease with which the repairer could find the
    incorporated document once it had gone as far as the RSO has directed — that
    is, to the "Documents & Forms" link. But the district court found as a factual
    matter that the repairer's representative was "internet savvy"; he admitted he
    could have accessed the terms and conditions at any time; and the repairer did
    not contest the trial court's finding that "a reasonable person would have been
    able to find the terms and conditions." Id. at 269. No such factual findings
    were made here. Rather, Steingart certified without dispute that he tried but
    could not find the Seller's Machinery Terms and Conditions of Sale on
    Mestek's website.
    Mestek also puts undue weight on the number of clicks needed to reach
    an incorporated document.     True, after arriving at the marine company's
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    website, the repairer in One Beacon had to click three times to reach the
    incorporated document, and Atlantic had to click just once to reach Mestek's
    terms and conditions. But Atlantic lacked directions on what to click. The
    "Terms & Conditions" link was inconspicuous and did not match the title of
    the document the quotation referenced.        By contrast, the marine company
    directed the repairer to the "Forms & Documents" section of its website. In
    sum, we conclude Mestek misplaces reliance on International Star Registry
    and One Beacon.
    We address one additional reason to question the efficacy of Mestek's
    incorporation by reference: Mestek failed to alert Atlantic in its quotation that
    the incorporated terms and conditions limited its liability and excluded claims
    for consequential damages. That lack of conspicuousness may run afoul of the
    UCC's prerequisites to limiting or excluding consequential damage claims.
    The UCC allows sellers to exclude or modify an implied warranty of
    merchantability and fitness, but if the limitation or exclusion is in writing (as it
    must be with an implied warranty of fitness), the exclusion or modification
    must be "conspicuous." N.J.S.A. 12A:2-316(2).10 And "'[c]onspicuous,' with
    reference to a term, means so written, displayed or presented that a reasonable
    10
    N.J.S.A. 12A:2-316(3) sets forth exceptions to the rule that are not relevant
    here.
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    person against which it is to operate ought to have noticed it."          N.J.S.A.
    12A:1-201(b)(10). "Conspicuous terms" include headings and language that
    are distinctive because of greater size, "contrasting type, font, or color," or, in
    the case of language, because it is "set off from surrounding text of the same
    size by symbols or other marks that call attention to the language." N.J.S.A.
    12A:1-201(b)(10)(a) to (b).
    Relatedly, the UCC allows sellers to limit or exclude consequential
    damages, so long as the limitation or exclusion is not "unconscionable."
    N.J.S.A. 12A:2-719(3).      Other courts have imported the conspicuousness
    requirement of section 316 into section 719, holding that limitations of
    damages must be conspicuous; in other words, non-conspicuous limitations of
    damages are unconscionable. See Oldham's Farm Sausage Co. v. Salco, Inc.,
    
    633 S.W.2d 177
    , 182-83 (Mo. Ct. App. 1982) (stating that "although there is
    no mention of whether a limitation clause must be conspicuous, the fact that a
    clause is tucked away in fine print on the back side of the signature page may
    well lead to 'unfair surprise' and therein be unconscionable"); Adams v.
    Am.Cyanamid Co., 
    498 N.W.2d 577
    , 588 (Neb. Ct. App. 1992) (holding that
    "the requirement of § 2-316(2) that a disclaimer of warranty of merchantability
    be conspicuous also applies to limitations of remedies" under § 2 -719); Seibel
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    v. Layne & Bowler, Inc., 
    641 P.2d 668
    , 392 (Or. Ct. App. 1982) ("To be
    effective, contract provisions which limit the buyer's remedies for breach must
    be conspicuous or brought to the buyer's attention."); Stauffer Chem. Co. v.
    Curry, 
    778 P.2d 1083
    , 1093 (Wyo. 1989) (holding that "the appropriate rule is
    that a limitation of liability statement, like a disclaimer of implied warranty,
    must be conspicuous in order to become a basis for the bargain"). 11
    Without   expressly   equating    lack    of   conspicuousness      with
    unconscionability, we have held that a limitations of liability provision is
    unconscionable if it is hidden in a way likely to escape notice. Jutta's Inc. v.
    Fireco Equip. Co., 
    150 N.J. Super. 301
    , 307 (App. Div. 1977). In Jutta's, we
    held "[t]he limitation clause was concealed in a provision clearly suggesting
    that it was conferring upon the purchaser a benefit in the form of a guarantee;
    nothing in the heading [which was 'Distributor's Guarantee'] suggest[ed] the
    presence of a sharp limitation on defendant's overall liability hidden therein."
    
    Ibid.
       Contributing to the unconscionability finding, we noted the clause's
    meaning was obscure, and even the limited liability for damages equal to price
    paid was contingent upon entering a maintenance contract. Ibid.; see also 4B
    Anderson on the Uniform Commercial Code § 2-719:112 (3d ed. 2010) (stating
    11
    Other courts take the contrary view. See 4B Anderson on the Uniform
    Commercial Code § 2-719:26 (3d ed. 2010) (citing cases).
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    25
    although "U.C.C. § 2-719 does not require that an exclusion of consequential
    damages be conspicuous, an exclusion of consequential damages is
    unconscionable when it is hidden in fine print, on the basis that 'the principle
    behind the concept of unconscionability is the prevention of oppression and
    unfair surprise'" (quoting Oldham's Farm Sausage, 
    633 S.W.2d at 182
    )).
    Alternatively, lack of conspicuousness may be a contributing factor, if not a
    decisive one, in determining section 719 unconscionability. See Gladden v.
    Cadillac Motor Car Div., 
    83 N.J. 320
    , 337-38 (1980) (Pashman, J.,
    concurring).
    One may argue that if a limitation of liability provision is
    unconscionable and therefore unenforceable because it is hidden in the
    document presented to the buyer, a limitation of liability provision is likewise
    unconscionable and unenforceable if it is hidden in an entirely different
    document that is incorporated by reference without any notice that it includes a
    damages limitation.      That is the case here.    At the very least, Mestek's
    limitation of liability provision is not conspicuous in the quotation; indeed, it
    is not present at all.
    One court has held that a contract that incorporates by reference a
    limitation of damages clause must do so conspicuously.              In Matador
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    Production Co. v. Weatherford Artificial Lift Systems, Inc., 
    450 S.W.3d 580
    ,
    593-94 (Tex. Ct. App. 2014), the court rejected the defendant's argument that
    its website's terms and conditions passed muster because they were
    conspicuously presented within the website document, even if the print which
    referred the reader to the website was not. The court noted that the page
    "referring . . . to the terms and conditions on the website failed to indicate that
    substantial liability-limiting provisions were contained within the terms and
    conditions." 
    Id. at 594
    . What's more, the type was small and located at the
    bottom of a page where it would not attract attention. 
    Ibid.
    Because we hold that the incorporation by reference here does not meet
    the test we articulated in Alpert, Goldberg, we do not decide if the
    incorporation also runs afoul of the UCC, especially since the parties did not
    expressly address the issue. But we note the issue because of its potential
    impact on remand, or in other cases.
    Atlantic's remaining arguments lack sufficient merit to warrant
    discussion. R. 2:11-3(e)(1)(E). We add only that we discern no abuse of
    discretion in the trial court's denial of Atlantic's reconsideration motion. See
    Cummings v. Bahr, 
    295 N.J. Super. 374
    , 389 (App. Div. 1996) (applying
    abuse-of-discretion standard of review). Atlantic raised a legal issue regarding
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    the Statute of Frauds that it could have raised in its initial opposition to
    Mestek's partial summary judgment motion. See Medina v. Pitta, 
    442 N.J. Super. 1
    , 18 (App. Div. 2015) (stating that "a motion for reconsideration does
    not provide the litigant with an opportunity to raise new legal issues that were
    not presented to the court in the underlying motion").       Furthermore, "the
    factual predicates of [Atlantic's] new theory were available when [Atlantic]
    responded to [Mestek]'s motion for summary judgment." Cummings, 
    295 N.J. Super. at 384
    .
    Reversed and remanded. We do not retain jurisdiction.
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