Will my company's Terms and Conditions always apply?

Not necessarily. A contract is created by an offer and an acceptance. Parties often disagree about when an offer is made and an acceptance occurs. As a result, there is often a dispute as to which provisions of the correspondence between the parties actually became a part of the contract between them.

Under the common law, two rules developed regarding acceptance: (1) the “mirror image rule,” under which a party must accept an offer on the exact same terms it was offered, and (2) the “last shot rule,” under which parties could counter-offer back and forth with different terms until performance of the contract was undertaken, in which case, the last document sent would generally be the controlling terms.

In contrast, under the UCC, a purported acceptance need not "mirror" the offer and can include additional terms. Those additional terms will become part of the contract unless they materially alter the offer, they are objected to by the offeror in a reasonable time, or the offer expressly limits acceptance to the terms of the offer. What is considered “material” in these circumstances is often litigated.

Sifting through the correspondence leading up to a contract between the parties becomes particularly challenging when each party has its own terms and conditions, i.e. a seller submits a quote incorporating its terms and conditions, a buyer then issues a purchase order incorporating its own terms and conditions, and the seller then responds by accepting the purchase order and invoicing the buyer, incorporating the seller’s terms and conditions again. This “battle of the forms” can be expensive and complex to sort through.

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