I’ve written previously about the so-called “Battle of the Forms” both here and here.  Yesterday’s post concerned a case, Taurus Mold, Inc. v. TRW Automotive US, LLC, in which the Court of Appeals assumed, without discussion, that purchase orders or invoices that incorporated standard terms and conditions by reference to a website were legal as a matter of law.  Randy Safford in my office noticed another important lesson from the case (one that is often repeated but sadly overlooked): Get. It. In. Writing.

In Taurus, the plaintiff alleged that it entered into oral agreements with the defendant under which the plaintiff agreed to sell goods and perform services specified in written purchase orders, but at a higher price than specified in the purchase orders.  Each of the purchase orders, however, referenced the online terms and conditions which contained a so-called “integration clause”.  The “integration clause” specifically states that the “parties are contracting solely on the basis of this order, which contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof” (the emphasis is mine).  In other words, the separate oral agreements are inadmissible and, therefore, the court looked only to the purchase orders to determine the parties’ agreement.

The plaintiff’s problem then is not so much that the terms and conditions were incorporated by reference but that the plaintiff relied on what the defendant told him (the “oral” agreement) and ignored the written purchase order and the “fine print” entirely.  As Randy put it, “Get the oral deal in writing or get burned….”

–Matt