Ultraflex Systems Of Florida, Inc., v. Veritev Operating Co.

2019 WL 7207483 (2019)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

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Facts

Ultraflex (P) and D have regularly done business together for the past decade. The parties exchanged routine documents such as purchase orders, sales order confirmations, and invoices. D would initiate the parties' transactions by electronically sending purchase orders that contained D's Terms and Conditions of Purchase. One of those paragraphs prescribes: Acceptance; “Entire Agreement - Unless otherwise agreed to in writing, these Terms and Conditions of Purchase ('Terms') apply to all purchases by P ('Buyer') from the supplier of any goods and/or services ('Seller') hereunder. These Terms constitute Buyer's offer and may be accepted by Seller only in accordance with the terms hereof. Seller's acceptance of these Terms and any order hereunder shall occur either through commencement of performance or acknowledgment of the order. By accepting an order hereunder, Seller waives all terms and conditions contained in its quotation, acknowledgment, invoice or other documents which are different from or additional to those contained herein, and all such different or additional terms and conditions shall be null and void. No addition to, waiver or modification of, any provisions herein contained shall be of any force or effect unless made in writing and executed by Buyer's authorized representative.” Another paragraph contains a choice of law provision: 'These terms, any order hereunder, and the rights and obligations of the parties thereto, shall be governed by the laws of the State of Delaware, without giving effect to its principles of conflicts of law. Seller agrees to subject itself to the courts of Delaware and such venue shall be exclusive regarding disputes arising out of these Terms.' When P got an order from D P would promptly transmit a sales order confirmation that included a copy of its terms and conditions of sale: “MISCELLANEOUS: This agreement is effective upon shipment of the Product by Ultraflex. This agreement is governed by New Jersey law and Purchaser agrees that in the event of any dispute arising under or relating to this purchase and sale agreement that Purchaser shall submit to the exclusive personal jurisdiction of the state and federal courts situated in the State of New Jersey.” D placed multiple purchase orders for substrate materials with P from September 2018 and March 2019. D refused to pay those invoices because an October 2017 order was deemed defective by one of D's customers. P claims it provided an appropriate credit for the allegedly defective shipment towards D's unpaid balance from the 2018-19 purchases. P sued D for breach of contract. D filed three counterclaims. D claims that despite continued efforts to obtain a full refund on defective products, P only issued a partial credit for twelve of the 239 printing rolls. D moved to have the case transferred to the United States District Court for the District of Delaware pursuant to the forum-selection clause in P's Terms and Conditions or, in the alternative, dismissed on the grounds of forum non conveniens.