A Dutch seller and a German buyer concluded an oral agreement for the sale of computer software. Three days later the buyer confirmed the content of the agreement by means of a written order; the same letter contained a forum selection clause in favor of a German Court printed as a footnote in small characters. With a later fax the seller in its turn confirmed the buyer's written order and declared that its own standard terms were applicable to the contract for all contractual terms not addressed to in the buyer's confirmation. A copy of the standard terms was then sent to the buyer, which received it without objection. After delivery the seller commenced an action to obtain payment in a Dutch Court on the basis of a forum selection clause contained in the seller's standard terms. The buyer claimed that its own forum selection clause was applicable.
The Court denied its jurisdiction to hear the case since it held that according to the CISG provisions on acceptance (Art. 18 CISG et seq.), the buyer's forum selection clause was applicable. In the Court's opinion by replying to the buyer's written confirmation of the agreement, the seller had expressly excluded the applicability of its own standard terms with regard to "all terms" conflicting with the ones stated in the buyer's confirmation. The result was that the seller had accepted the buyer's confirmation in its entirety, including the printed forum selection clause in favor of a German Court. |