Consequential Damages Disclaimer:
The disclaimer that protects Sierra Nevada Trees Inc. from liability in a claim for consequential damages contained in the purchase order acknowledgement is part of the agreement with Burger Ranch Inc. Burger Ranch Inc. accepted the terms of the offer and there was proper performance by both parties.
As stated in the Gould Commercial Code Section 2-207 subsection 1, “A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.”
In this case, the seller (Sierra Nevada Inc.) stated additional terms in the purchase order acknowledgement that provided new terms to the contract. These additional terms were sent within 5 days of the receival of the purchase order to the buyer (Burger Ranch Inc.), a reasonable amount of time necessary to meet the guidelines set by the Gould Commercial Code. Furthermore, the buyer had enough time, approximately two months, to negate the contract if they found the consequential damages disclaimer not to be in their best interest. However, they still accepted the new terms in the purchase order acknowledgement, had the trees shipped to their locations, paid for the trees once they were set up, and never objected to these terms until a single unfavorable incident on December 2nd.
Additionally, the fact that both parties performed their respective obligations under the terms of the contract despite the disclaimer can be construed that the buyer accepted the terms of the contract. Sierra Nevada Trees Inc. was obligated to provide, set up, and decorate trees and in return Burger Ranch Inc. was obligated to pay $150 per tree upon the seller’s performance. These obligations were met by both...