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When can emails, instant messages, tweets, etc. create a contract - especially when you did not think you were

creating a contract.

In a case out of Florida from 2011, this issue was litigated between CX Digital Media an online marketing service, and Smoking Everywhere, Inc., a retailer of electronic cigarettes. CX Digital charges a fee to its clients of which Smoking Everywhere was one for providing sales referrals. The two companies were in the process of negotiating changes to their contract via instant messaging. The parties were "discussing" the issue of the maximum number of referrals per day (more referrals means a higher fee to CX). A CX employee sent a message to a Smoking Everywhere executive asking about the maximum number of referrals. The Smoking Everywhere executive replied "No Limit". The CX employee replied "Awesome"

After. CX referred a higher volume of sales leads than it had done previously. Smoking Everywhere refused to pay the additional fee for the extra referrals, claiming that the instant messaging chat was not an enforceable contract modification of the initial contract.

Who do you think won at trial? What can a company do to avoid "accidental" contracts via email, text, tweet, etc.?

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