Example these terms and conditions including a the

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Example: “These Terms and Conditions, including (a) the Online Shopping Terms and Conditions (below), (b) Acceptable Use Policy (below) and (c) the Hbc Privacy Policy, constitute the entire agreement between Hbc and you pertaining to the use of this website” How Courts Interpret Express Terms in a Contract Interpret - decide between two means for a word or phrase Standard form contract or not? If standard, contra proferentum rule applied If not standard form, golden rule, literal approach, and contextual approach. Exclusion or Limitation Clauses Clause in K that attempts to excuse one party of liability for breach of the K or limit the liability flowing from the breach Example is a clause in an alarm company contract with a jewellery store that reads: - “if ADT should be found liable for loss, damager or injury due to a failure of the service or equipment in any respect, its liability shall be limited to a sum equal to 100% of the annual service charge or $10,000, whichever sum is less... as the exclusive remedy Exclusion or Limitation Clause in Standard Form K Clause only legally enforceable if: 1. It is clear and unambiguous; and, 2. Party accepting has been given reasonable notice of clause before entering K (if clause onerous or unusual, must be given time to study clause before agreeing); and, 3. Some evidence adversely affected party accepted it – example signed the agreement. Exclusion and Limitation Clauses on the Internet 1. Browse wrap agreements
2. Click-wrap agreement Discharge of the contract Meaning of discharge 4 methods of discharging a contract: 1. Discharge by performance 2. Discharge by agreement 3. Discharge by operation of law 4. Discharge by breach of condition or fundamental term Discharge by Performance Performance = (1) fully and (2) precisely completed all contractual terms Time of performance only critical when: 1. K says time is of the essence; or, 2. Circumstances dictate that time is of the essence (e.g., delivery of fresh fruit) Discharge by agreement 1. Option to terminate 2. Condition precedent 3. Waiver Discharge by operation of the law - Common law or statute may discharge a contract - Doctrine of frustration is a common law example - Federal Bankruptcy and Insolvency Act is a statutory example Discharge by Breach of Contract Breach = failure of one or both parties to (1) fully and (2) precisely perform all their contractual obligations - Type of term breached determines whether the K is discharged or not Types of Contract Terms 1. Conditions 2. Warranties 3. Intermediate terms Discharge by Breach of Contract Breach of a condition or an intermediate term that turns into a condition, relieves the innocent (or non- breaching) party of further performance of their contractual obligations (discharged) AND allows them to sue the breaching party for damages caused to the innocent party by the breach
Breach of K and Risk Management 1. Expressly labelling terms by type when contract made 2. Seeking legal advice before treating a K as discharged by breach Anticipatory Breach of Contract -

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