A conditional acceptance clause is not sufficiently explicit to declare a plaintiff's intention to abort the contract unless it was sure of the defendant's assent to additional or different terms where the clause does not come out and state just that. Courts have required that such clauses be strictly construed. A conditional acceptance clause will convert an acceptance into a counteroffer only where the offeree clearly reveals its unwillingness to proceed with the transaction unless it is assured of the offeror's assent to additional or different terms.
The buyer submitted a purchase order, which indicated that a sale was subject to its conditions. However, the purchase order did not contain an indemnification provision. In response to the buyer's purchase order, the seller submitted an order acknowledgement, which provided that acceptance was conditioned on the buyer's acceptance of the seller's conditions. The seller's conditions contained an indemnification provision. Later, one of the buyer's employees obtained a judgment against the seller when he was injured while using the seller's product. The seller sought indemnification. In response to the buyer's summary judgment motion, the seller argued that its conditional acceptance clause satisfied the requirements of U.C.C. § 2-207(1).
Should the buyer's summary judgment in the seller's indemnification action be granted?
In granting summary judgment for the buyer, the court held that there was no conditional acceptance because the seller did not explicitly declare its unwillingness to proceed if its conditions were not accepted. The court also found that the indemnity provision, an additional term, it did not become a part of the contract, as the buyer's offer was expressly limited to the terms in the purchase order.