Brief Fact Summary.
Lively sued IJAM, Inc. (IJAM) outside of the forum state when IJAM failed to repair and return a computer purchased from IJAM.
Synopsis of Rule of Law.
If additional terms are introduced after the contract is formed, the additional terms should be considered part of the contract under Uniform Commercial Code § 2-207(2) unless both parties are merchants.
The court found that commercial activity via the Internet must be substantially more regular and pervasive to constitute purposeful availment of doing business within a given state.View Full Point of Law
Lively ordered a computer from IJAM, Inc. (IJAM) for a customer. The invoice shipped with the computer included a forum-selection clause with Georgia as the preferred forum state. When the computer malfunctioned, Lively returned the computer to IJAM to repair, and IJAM never returned the computer. Lively sued IJAM in his home state of Oklahoma and IJAM sought to dismiss the lawsuit due to the forum-selection clause. The trial court granted judgment to Lively and IJAM appealed.
Whether additional terms should be considered proposed terms that are part of the contract if additional terms are introduced after the contract is formed?
Yes. The judgment of the trial court is affirmed. Although it is clear that IJAM is a merchant, it is unclear whether or not Lively is a merchant. If Lively is not determined to be a merchant, the invoice containing the forum-selection clause constitutes additional terms and Lively did not accept those terms by opening the box. Similarly, if Lively is considered a merchant, the forum selection clause is a material part of the contract, and therefore would not become part of the contract.
If both parties are merchants under Uniform Commercial Code § 2-207(2), the additional terms become part of the contract unless: (1) the terms materially change the contract, (2) the offer is restricted to acceptance of the original offer, or (3) the other parties notifies party proposing additional terms of objections to the proposed terms.