Here is a question asked by a participant in last month's Webinar. Question: "What takes precedence if the PO Ts and Cs are in conflict with the Proposal Ts and Cs when the PO refers to the Proposal document"? (Note: Some liberties in paraphrasing this question have been taken) Answer: This is going to sound like a typical "lawyer answer," but it really depends. First, it depends on whether either the PO or Proposal contains any "conflicting terms killer." Such a killer would be a clause in the Proposal , for instance, that says: "Any and all terms in the PO that conflict with this Proposal are hereby rejected." The PO might also say something like that. Or one of those "killers" might go even farther and say that any attempt to reject ANY of the Proposal terms would result in the lack of any deal. So would you would first need to sort out is the effect of those sorts of clauses. Second, you would want to address what--if anything--is the effect of the UCC (a uniform set of laws adopted in 49 out of the 50 states that govern some types of commercial transactions). Sometimes the UCC provides that if the Proposal and the PO conflict that the contrary terms are BOTH knocked out, leaving the parties with ONLY the non-conflicting terms! That can produce an interesting transaction, to say the least. Another unanswered question in my next installment.
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