Commercial Division Blog
Terms and Conditions Sent to Party Several Days After Parties' Agreement Part of Contract
On February 21, 2017, the First Department issued a decision in Lion Copolymer, LLC v. Kolmar Americas, Inc., 2017 NY Slip Op. 01307, holding that terms and conditions sent to a party several days after the parties reached an agreement were part of the agreement, explaining:
In July 2011, representatives from plaintiff Lion Copolymer, LLC (Lion) and Kolmar agreed, during a telephone call, that Kolmar would provide Lion with a certain amount of the industrial chemical butadiene that met certain specifications. Kolmar subsequently sent an email confirming the major details of the agreed-upon deal, and several days later, Kolmar sent a formal Transaction Confirmation and its terms and conditions, which included a provision that if Lion did not object within 48 hours, these documents would make up the parties' agreement. These documents also contained a forum selection/choice of law provision, a waiver of warranty provision, and a notice of claim provision.
We agree with the motion court that the Transaction Confirmation and Kolmar's terms and conditions, to which Lion did not object, constituted the parties' agreement. The forum selection, waiver of warranty and notice of claim provisions did not constitute a material alteration such as would require Lion's consent for enforcement.