Nordyne, Inc. v. International Controls & Measurements Corp.

262 F.3d 843 (2001)

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Nature of the Case

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Facts

P had purchased control boards from D for approximately ten years. D would always forward a Customer Service Invoice with the following: 'CUSTOMER'S ORDER IS ACCEPTED ON THE EXPRESS CONDITION THAT THE TERMS AND CONDITIONS SET FORTH ON THE FACE AND REVERSE SIDE OF THIS INVOICE . . . SHALL APPLY AND THEY SHALL CONSTITUTE THE COMPLETE AGREEMENT BETWEEN THE PARTIES.' One of the Terms was a forum-selection provision: 'In any action or proceeding brought pursuant to this agreement venue shall be laid in Onondaga, New York.' Another term warranted products for one year from the date of shipment. P had availed itself of this one-year warranty. D had a new product, but one of the new features was not necessary for P. D modified the panel and tendered a new quotation for the unit as modified. The quote was for P's estimated annual usage of 40,000 units at $ 9.87 per unit. It was good until December 31, 1997, that 'blanket orders must be fully released within one year,' that standard commercial packaging would apply, that shipment would be 'net 30 days; FOB Syracuse, NY,' and that all orders were non-cancelable and non-returnable. Printed on the bottom was: 'CONDITIONS ON REVERSE ARE PART OF THIS QUOTATION.' These conditions included the following: 'This quote is subject to the Seller's standard terms and conditions contained on the order acknowledgment.' The conditions also included the statement, 'All orders are subject to acceptance by the Seller at its home office in Cicero, New York.' D sent five samples to P and P eventually signed the document which was sent to D and accepted. P sent a purchase order subject to terms and conditions printed on reverse side. None of the conditions related to choice of forum in case of a dispute. With each shipment, D included the Customer Service Invoice described above, as had been the practice between the parties. P eventually filed a breach-of-warranty action in the District Court. D moved to dismiss the complaint for improper venue, invoking the forum-selection clause on the reverse side of its Customer Service Invoices. The Court held that the July 1997 price quotation was an offer. P accepted the offer by signing the production approval on September 15, 1997. The terms and conditions, including the forum-selection clause, on the reverse side of D's invoices, were incorporated by reference in D's offer, and P accepted these terms when it accepted D's quotation. P appealed.