Forced to sign

contract on dotted
lines? – FULL
VERSION

Battle of Forms under “The Uniform Commercial Code”

By
Karthik Kannappan S - Senior Corporate counsel
Madhusmita Borthkur – Researcher K.L.E. Society LAW
College, Bangalore

Copyright © 2009 The following material is provided for informational purposes only. Before taking any
action that could have legal or other important consequences speak with a qualified professional who can provide
guidance that considers your own unique circumstances. The author does not accept any responsibility or liability
whatsoever for loss damage or costs incurred or claimed in any manner as a consequence of any action or inaction
of any person or party based on this Report.
Background:

1. Standard form contracts1, (i.e., contracts with preprinted terms containing “boilerplate” language), have
been in common use in the United States since at least the late nineteenth century. There are various legal
implications when alternate terms and conditions are proposed by either party.
2. At common law, a contract was not enforceable unless there was a meeting of the minds on all terms. But
this “mirror image rule2” was abandoned by the Uniform Commercial Code 3 (“UCC”), which allows parties to
form a valid contract even if their proposed terms are not identical. Under UCC § 2-207 and state statutes
modeled after it4, additional terms contained in an acceptance do not prevent contract formation. However,
the question that remains is which of these additional terms will become part of the enforceable contract!

Issue #
Does UCC apply to Computer software service providers?
1
Issue #
Legal implication of varying terms or additional terms proposed by parties?
2
Issue # Which of the additional terms will become part of the enforceable contract? Key
3 strategy in drafting?

B. Issue # 1: Does UCC apply to Computer software service providers?

1. Software is often provided in combination with various types of services 5 or used in the performance of
service contracts6. Before examining such software transactions in detail, judicial treatment of analogous
hybrid sale/service transactions generally must be reviewed.
2. Pure service contracts - the opposite end of the spectrum from pure sales transactions - generally fall
outside of the domain of article 27. However, pure service and pure sale transactions represent the extreme
ends of a continuum. Most transactions are hybrids involving both the sale of goods and the performance of
services.
3. Conclusion: Courts view software as a good within the domain of article 2 of UCC 8. Hence UCC does apply
where software is involved.

C. Issue # 2: Legal implication of varying terms or additional terms proposed by parties?

The legal implication of any additional terms or varying terms proposed by either party is explained under the
Uniform Commercial Code § 2-207 (Additional Terms in Acceptance or Confirmation) that states the following:

1
Typically Standard forms are a strategy to help businesses become more efficiently by eliminating the need for
extensive negotiations between the parties. This puts the Service providers at the disadvantage.
2
Under mirror rule an acceptance had to be a “mirror image” of the offer in order for a contract to be formed.
Thus, if differing terms were contained in the seller’s acknowledgement, no contract was formed. The party that
fired the “last shot” was favored because that party’s terms were viewed as assented to and binding.
3
Presently Commercial Code (UCC) is the dominant source of American commercial law and is applicable to the
contracts. All 50 States have enacted all or most of the UCC.
4
See, e.g., N.J. Stat. Ann. § 12A:2-207; NY CLS UCC § 2-207.
5
See, e.g., RRX Indus. v. Lab-Con., Inc., 772 F.2d 543, 546 (9th Cir. 1985) (software provided with employee
training, repair services, and system upgrading.
6
See, e.g., In re Community Medical Center, 623 F.2d 864 (3d Cir. 1980)
7
See R. BERNACCHI & G. LARSEN, supra note 9, at 138 (U.C.C. does not cover contracts solely for services); Note,
The Goods/Services Dichotomy and The U.C.C.: Unweaving the Tangled Web, 59 NOTRE DAME L. REV. 717, 717
n.3 (1984) (article 2 does not apply to contracts solely for services); Blottner, Derrico, Weiss & Hoffman v. Fier,
420 N.Y.S.2d 999, 1002 (N.Y. Civ. Ct. 1979) (providing of services is not covered by U.C.C.). See also R.
ALDERMAN, A TRANSACTIONAL GUIDE TO THE UNIFORM COMMERCIAL CODE 7 (1983) (article 2 is not expressly
applicable to service contracts); A. FARNSWORTH, CONTRACTS 33 (1982) (article 2 not applicable to service
contract).
8
In RRX Industries v. Lab-Con, Inc., 772 F.2d 543 (9th Cir. 1985) the court found the California version of the
U.C.C. applicable to a contract for the purchase of software. The court, noting that for the U.C.C. to apply the
software must be a good, had no difficulty concluding without analysis that the software was a good under U.C.C.
section 2-105. The court then found that the sale of goods aspect, the sale of the software, was the predominant
feature of the transaction, with the services being only an incidental part of the transaction. Consequently, the
Ninth Circuit found, under the predominate feature test, that in this case the sale of software with accompanying
services was a contract for the sale of goods covered by article 2.
 1. Under § 2-207 (1)9 a definite expression of acceptance or a written confirmation of an informal
agreement may constitute a valid acceptance even if it states terms additional to or different from the
offer or informal agreement.
2. Under § 2-207 (2)10 the additional or different terms are treated as proposals for addition into the
contract. Between merchants, such terms become part of the contract unless(Refer Exhibit 1 & 2
attached to the document):
a) the offer expressly limits acceptance to the terms of the offer,
b) material alteration11 of the contract results,
c) notifications of objection to the additional/different terms are given in a reasonable time after
notice of them is received.
3. Under § 2-207 (3)12, if there is no contract under 2-207(1), then under UCC Sec. 2-207(3), conduct by the
parties that recognize there is a contract may be sufficient to establish a contract. The terms for this
contract include only those that the parties agree on the rest of UCC gap fillers (“Knock-out Rule”).
4. No material Alteration: Lists of terms that do not materially alter a contract are: limitation of damages
clause13, clause fixing a reasonable time for complaint, clause providing for interest on overdue invoices,
clause fixing standard credit terms where the terms are within a reasonable range.
5. Material Alteration: Lists of terms that do materially alter a contract are: clause adjusting price14, clause
for indemnification15, choice of law clause16, choice of forum clause17, clause disclaiming warranties18, clause
providing for attorneys’ fees19, clause changing quantities to be shipped in an installment contract20

D. Conflicting Terms - Knockout rule and UCC Gap Fillers under § 2-207 (3):

1. knock-out rule21:

a. Most courts require affirmative assent from buyer/offeror to additional terms, even if proceeded
with contract. Without assent to additional terms, knock-out rule (2-207(3)) applies22.

b. The “knock-out rule” is meant to resolve a “battle of the forms” when a seller and buyer exchange
unilateral forms with conflicting terms. The existence of conflicting terms is taken as mutual rejection,
regardless of which was communicated first. As a result of this mutual rejection, the contract contains a
gap. Accordingly, the Code supplements the gaps with its usual statutory gap-filler and, where
applicable, with immanent business norms.

c. Points to consider of court interpretation on conflicting terms are as follows:

i. Duration of warranty: In Northrop Corp. v. Litronic Industries23, the court knocked out the
discrepant warranty terms and filled the gap with a warranty for “reasonable” time24.

9
Refer § 2-207 (1) (Additional Terms in Acceptance or Confirmation)
10
Ibid.
11
Term materially alters the contract if its incorporation without express awareness would result in surprise or
hardship or is a significant element of the contract.
12
Refer § 2-207 (3) (Additional Terms in Acceptance or Confirmation)
13
See Suzy Phillips Originals, Inc. v. Coville, Inc., 939 F.Supp. 1012 (E.D.N.Y. 1996)
14
See Advanced Mobilehome Systems of Tampa, Inc. v. Alumax Fabricated Products, Inc., 666 So.2d
166 (Fla. App. 1995)
15
See Plamer G. Lewis Co. v. ARCO Chemical Co., 904 P.2d 1221 (Alaska 1995)
16
See Dassault Falcon Jet Corp. V. Oberflex, Inc., 909 F.Supp. 345, 352 (M.D.N.C. 1995).
17
See Dependable Component Supply, Inc. v. Pace Elec. Inc., 772 So.2d 582, 584 (Fla. Dist. Ct. App. 2000).
18
See Tuck Indus. Inc. v. Reichhold Chems, Inc., 542 N.Y.S.2d 676, 678 (App. Div. 1989).
19
See Herzog Oil Field Serv., Inc. v. Otto Torpedo Co., 570 A.2d 549, 551 (Pa. Super. Ct. 1990).
20
See Steiner v. Mobil Oil Corp., 569 P.2d 751, 754 (Cal. 1977).
21
“Knockout” rule of Section 2-207: material provisions over which the forms disagree are knocked out.
22
See Step Saver, footnote 34.Step-Saver Data Systems, Inc. v. Wyse Technology 939 F.2d 91 (3d Cir. 1991).
23
29 F. 3rd 1173 (7th Cir. 1994). Seller’s form contained a 3-month warranty term; the buyer’s form contained a
warranty with no time limit. The buyer first inspected the goods after 6 months, and upon discovering defects
rejected the goods and sought remedies. The court did not have to designate a specific duration as the most
reasonable; it merely decided that the 6 months it took the buyer to invoke the warranty was reasonable.
 ii. Disclaimer of Warranty: In Roto-Lith v. Bartlett25, Judge Grant Gilmore opined that “it would
have been outrageous to have saddled the seller with warranties which (as the buyer knew) he
had expressly (and quite reasonably) disclaimed.”

iii. Arbitration: In a landmark case the two arbitration clauses were knocked out and the
dispute was referred to court even though the seller was willing to concede and arbitrate under the
buyer’s term26.

iv. Limitation of liability (including consequential damages): The seller’s term, by excluding
even foreseeable and ordinary expectation losses, sets damages too low; the buyer’s term, by
including unforeseeable and unpreventable components of the loss, sets damages too high.
Seller’s limitation on remedies can be more reasonable than the buyer’s expansive remedy term
when applied to a subset of losses and scenarios, but not to others. If the seller offers a limited
repair and replacement remedy and can do so reasonably, the seller’s term ought to be regarded
as more reasonable, especially in light of the seller’s statutory right to cure a defect before being
subjected to damages. If, instead, the seller cannot repair the defect (say, the goods were
destroyed), the seller’s term would be less reasonable27.

v. Damages: More generally, in line with the rule of §2-715, the buyer’s remedy term would
be unreasonable if it entitles the buyer to recover damages that he could have prevented28.

2. UCC Gap Fillers:

a. Once the parties’ conflicting terms drop out, the Code’s gap-fillers would be considered. One
should keep in mind that these gap-fillers are often significantly closer to the buyer’s form terms than
to the seller’s29.

E. Additional term under § 2-207 (2):

a) Where no conflicting terms and additional terms are proposed, UCC Gap filler would not be
applicable and it would be analyzed if such additional terms alter the material terms of the
contracts. (Examples of material terms would be price, quantity, delivery date and payment
terms).
b) As long at the additional terms do not alter the material terms they would not be struck out and
they may positively be retained to form part of the contract.
c) NOTE: Typically most of the PO Standard Terms and conditions DO NOT have limitation of liability.
They same should be proposed as additional terms while accepting to other terms and conditions.
Courts decided that additional terms on Limitation of liability proposed by seller do not amount to
alteration of material terms30.
24
The trial court relied on UCC §2-309 which allows buyer to reject non-conforming goods within a reasonable
time.
25
297 F. 2nd 497 (1st Cir. 1962).
26
Refer See Lea Tai Textile Co. v. Manning Fabrics Inc., 411 F. Supp 1404 (D.C.N.Y. 1975)
27
White & Summers, supra note 3, at 660–662, discuss the reasonableness of sellers’ limitations on remedies
under §2-719.
28
§2-715 explains that consequential damages are limited by “refusing to permit recovery unless the buyer could
not reasonably have prevented the loss by cover or otherwise.”
29
For example, when the buyer’s warranty term and the seller’s disclaimer of warranty drop out, the Code’s gap-
fillers include an ever-expanding warranty of merchantability and an express warranty arising from any
affirmations of fact the seller may have made orally in the course the parties’ communications (which, under the
Code’s weak version of the parol evidence rule, are often admissible). The result is therefore quite favorable to the
buyer, at times identical to the warranty term the buyer’s form included originally. Similarly, when the buyer’s
remedy terms and the seller’s limitations on remedies drop out, the gap-fillers are the generous remedies
available to the buyer under the Code, including consequential damages
30
In Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 2003 WL 1627458 (N.D. Ill. 2003) court stated that
Limitation of liability provision contained in sales order acknowledgment was not a material alteration to parties’
contract. Therefore, since buyer did not object to the term, such term was added to the contract, and buyer’s
ability to recover lost profits was limited.
F. Key Strategy in light of Courts interpretation of critical clauses:

1. No material Alteration: Include additional terms with reference to terms that do not alter the
material terms.
2. Material Alteration: Avoid additional terms that materially alter the contract if its incorporation
without express awareness would result in surprise or hardship.
3. Include liability cap: Include limitation of liability clause as additional terms.
4. Indemnification: For indemnification clause specifically state as, “notwithstanding anything
Contractor shall indemnify only for third party claim for Intellectual property misappropriation
claim.” This way any conflicting clause would be struck out while the above mentioned limitation of
liability would still protect the exposure of liability.
5. To ensure that desired terms become part of the contract and do not “fall out” as a conflicting
term, sellers may include a provision in a responsive form or acknowledgment that explicitly states
that formation of a contract between the parties is expressly conditional on the buyer’s agreement
with the terms in the seller’s form. This type of conditional acceptance must be an explicit
statement on the part of the seller.
 Exhibit 1 – Legal implication when Conflicting terms exist

Was Acceptance of
different terms (that
conflict opposed by
Supplier made
conditional on assent
from Buyer?
NO
YES

Conflicting terms will be No Contract unless agreed

“knocked out” in case there upon by Buyer
is a dispute between parties
as per UCC§ 2-207 (3)

Contract formed with non-

conflicting terms. The surviving
additional terms if any shall have
to pass materiality clause test.

Did the parties

No contract has been formed NO
continue to
between the parties.
conduct
business?

YES

Contract has been formed

between the parties by actual
performance and “UCC gap
fillers” would be applied by
Court as per UCC§ 2-207 (3)
 Exhibit 2 – Legal implication when Additional terms exist

with
Was Acceptance Of
Additional Proposed
By Supplier Made
Conditional On
Assent From Buyer?

YES
NO

No contract unless agreed

Did the Offer upon by Buyer
(with Add.
Terms)
Expressly Limit
Acceptance to
Terms of the
offer?

N YE

Does Additional
Terms YE
Materially Alter Contract without
The Additional Terms
Agreement?

N YE

Did The Parties

Did the Buyer Continue To
give Notification Conduct
of objection to Business?
the Seller?
N

YE

Contract with Additional Terms No Contracts Contracts with UCC

Formed “gap fillers” as per
Between The UCC§ 2-207 (3)
Parties.