Understanding and Drafting Technology Contracts: Avoiding Common Pitfalls

How can "contract float" be legally binding? Basic contract law requires a meeting of the minds on all material terms. If some of these terms are not in the agreement, not sure how a contract can be formed. Have courts upheld these contracts when challenged?

It’s a great question. The simple answer is that this type of drafting has been used for over thirty years. In the business to business context, this type of drafting is almost always upheld. In fact, if you remember the failed UCITA uniform law, it has drafter’s notes that go into this topic in detail. Track them down for more information. Bottom line: the customer is put on notice of the terms, the terms are incorporated into the agreement (but can float), and the customer accepts the approach.

With regard to internet terms, you say you may not want to lock that in due to changes in technology/security. Can't you state in the contract that the security measures will not go below the minimums stated in the URL document?

Exactly right. Remember the “don’t go negative “ language we discussed? The vendor can always improve but cannot materially reduce protections as of the Effective Date.