Subsection 2-207(1) will require an initial determination of whether the arbitration provision in the confirmations was “additional to or different from” the terms orally agreed upon. Assuming that the District Court finds that the arbitration provision was not a term of the oral agreements between the parties, the arbitration clause will be treated as a “proposal” for addition to the contract under Subsection 2-207(2), as was the case when Collins & Aikman’s acknowledgments were viewed as acceptances above. The provision for arbitration will be deemed to have been accepted by The Carpet Mart unless the District Court finds that it materially altered the prior oral agreements, in which case The Carpet Mart could not become bound thereby absent an express agreement to that effect.
…Regardless of whether the District Court finds Collins & Aikman’s acknowledgment forms to have been acceptances or confirmations, if the arbitration provision was additional to, and a material alteration of, the offers or prior oral agreements, The Carpet Mart will not be bound to that provision absent a finding that it expressly agreed to be bound thereby.
If, on remand, the District Court finds that the arbitration provision exists as a term of the contracts recognized under this application of Section 2-207, Collins & Aikman’s motion for a stay pending arbitration must be granted despite the fact that this is an action in fraud…
For the reasons set forth above, the case is remanded to the District Court for further findings consistent with this opinion.