Battle of Forms: What Survives?

Two forms, one contract

Facts of the case

• both parties use standard terms and reach agreement except on those terms
• the term is a provision prepared in advance for general and repeated use by one party and actually used without negotiation with the other party
• the standard term is common in substance with the standard terms of the other party
• the term is a provision prepared in advance for general and repeated use by one party and actually used without negotiation with the other party
• the term is a provision prepared in advance for general and repeated use by one party and actually used without negotiation with the other party
• the term is of such a character that the other party could not reasonably have expected it, regard being had to its content, language and presentation

• contract-on-common-terms: Established
• arbitration-is-part: Established
• liability-cap-is-part: Not established