A district court in Florida found in CX Digital v. Smoking Everywhere that a communication via instant messenger between company representatives was sufficient to modify the terms of the contract.
In this case, CX Digital was a referrer who had a contract with Smoking Everywhere to refer a maximum of 200 customers per day to their site, for an agreed-upon payment. In an Instant Messenger communication with the Vice President of Advertising, CX Digital asked about the removal of the limit. The VP agreed stating “No Limit.” This was held by the court to be sufficient to modify the contract terms, and bind Smoking Everywhere to the same per referred client payment for an unlimited number of referrals.
Lesson for in-house folks: Train your people that use IM, and realize that it’s not considered oral communication. And pro-actively, put in your contracts that instant messaging, voicemail, blog posting, or oral communications are insufficient to alter the contract.
h/t: Eric Goldman’s post