This section contains the nature of the case and procedural background.

P ordered a 54,000-pound granite monument from D. D responded by faxing an order acknowledgment to P and by sending an invoice to P. D claims this order acknowledgment and invoice contained terms and conditions on their backs, including a forum-selection clause compelling the parties to bring any litigation regarding this matter exclusively in the State Courts of Wisconsin. Neither the front of the order acknowledgment nor the front of the invoice mentions the existence of terms and conditions on the backs. P admits it received the order acknowledgment via fax, and also admits it received the invoice. P denies ever receiving the alleged terms and conditions on the backs of the documents. D claims it also mailed the order acknowledgment-with the terms and conditions on the back-to P via regular United States mail. P denies ever receiving such mail. D delivered the monument in April 2011. P paid in full. Numerous cracks in the granite monument began to appear only three years after installation. P complained and D sent a representative to investigate. The representative concluded that the cracks were natural fissures, and refused to replace the monument. P sued D. After demanding satisfaction from D, P was provided with a copy of the terms and conditions for the first time. D moved to dismiss the case related to the forum selection clause in its correspondence with P.

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