Okay, I'll bite. On second thought...
Uniform Commercial Code (UCC) Article 2-207 addresses this situation. The Uniform Commercial Code applies to the sale of goods, and is essentially the same across the United States. Traditionally, a contract would not be recognized unless the parties had agreed on all the salient points. A document accepting a written offer, but changing any of the terms or adding a term would be considered a counteroffer. No contract would be formed. The parties could exchange counteroffers indefinitely until they reached agreement on all points.
The UCC recognizes that in reality, each party often sends their standard forms to the other, and formal negotiations are not held to resolve the differences. Shipment and payment are made, often without any further review of the documentation. Recognizing this reality, the UCC departs from the traditional legal standard in this situation, and states that a contract is formed even where the “acceptance” (purchase order) adds terms to the “offer” (quote), unless the acceptance is conditional on assent to the new term. For example, if the quote stated shipment would be made within 90 days, but the purchase order stated that the order was conditional on agreement to ship in 30 days -- in other words, 30 days or no deal -- no contract would be formed unless the seller specifically agreed to the accelerated shipment schedule. The seller would not be bound to ship in 30 days unless it specifically agreed to do so.
So what happens when the acceptance adds additional terms? Under UCC 2-207, the additional term is added, as long as it does not materially alter the terms of the deal, or unless a notice of abjection is given. It is hard to define what is or is not a material alteration. Changing the price or the quantity would be material. Other changes would not be considered material. The real best definition is recognized in the law--if the other party objects, it must be material.
Unfortunately, often the differences between the forms are not recognized until after the fact. Neither party has objected, but now there is a difference in the terms. The forms disagree. What are the terms of the deal? Under UCC. 2-207, the terms of the contract will be those terms on which both forms agree. The conflicting terms will cancel each other out; neither will be enforced. The provisions of the UCC (concerning warranties missing terms on which the parties have not agreed. So, to answer the question--neither controls. The exact terms may be in doubt. If there are “deal-stopper” terms that your company cannot do without, you must monitor the exchange with the other party and resolve such differences expressly through negotiations, and ensure that the documentation reflects the actual agreed terms and conditions of the deal.
by Nicholas Moraitakis, managing partner, Mills, Moraitakis, Kushel