Battle of the forms: The importance of legal training for sales professionals

Battle of the Forms:

The Importance of Legal Training for Sales Professionals

Brian Cressman is an associate at MacDonald Illig and a member of the Business Transactions, Labor & Employment, and Education Law Practice Groups.

Unlike HR professionals, who routinely attend legal training as part of their continuing education requirements, sales professionals receive such training much less often. As the manufacturer and seller of goods, however, the importance of training for your sales and marketing team cannot be overstated.

In the United States, sales of goods are governed by the Uniform Commercial Code (“UCC”). Very often the documentation exchanged between the parties never reaches complete agreement, but the parties nevertheless proceed as if a contract had been formed. The UCC recognizes this as a contract. In fact, the UCC requires very little to form an enforceable agreement — simply a specified quantity and the subject matter. Any open terms, including price, will be filled in by the terms set forth in the UCC — so-called “gap fillers.”

The UCC’s gap fillers are also applied when a seller and buyer exchange conflicting terms and conditions. In that case, the UCC provides that the conflicting terms knock each other out. Such a situation is commonly described as the “battle of the forms.” Below is an example of a contract term that could be implied into a contract by UCC gap fillers when conflicting terms and conditions result in the application of the UCC “knock out” rule:

Seller warrants to Buyer and any covered third parties that the goods are fit for their ordinary purposes as well as for any unique purpose for which Buyer is relying on the goods. If there is a breach of warranty, Buyer may, in its sole discretion, cancel the contract and recover the price that has been paid; hire another company to repair or replace the defective goods at Seller’s expense; recover damages for non-delivery, including incidental and consequential damages, including lost profits; and deduct any damages from the price due Seller under the contract. Buyer may bring any contract claim, including for breach of warranty, within four years of delivery.

As is shown in the above example, the UCC’s gap fillers are very buyer friendly. In particular, there are no limitations of remedies and no limitations of liability. Quite literally, the failure of a 10 cent widget could result in a claim for millions of dollars in damages under the UCC.

Moreover, the rules governing the battle of the forms heavily favor the buyer. As a result, in a battle of the forms, the seller almost invariably loses if the buyer has a carefully drafted set of purchase order terms and conditions. Thus, in order to “win” the battle of the forms, the seller needs to avoid such a battle altogether. In other words, the burden is on the seller to make certain that critical terms, such as limitations of liability, get into the contract.

Recognizing when a battle of the forms is occurring and how to deal with it requires training regarding the boilerplate terms of purchase order terms and conditions, your own company’s terms and conditions, negotiable and non-negotiable terms, and the strategies your team may employ to avoid onerous terms imposed by buyers or the UCC gap fillers.

Contracting is, in many respects, an exercise in risk management. Your sales team needs to understand the risks involved in the battle of the forms, how to avoid the battle of the forms, and, when it cannot be avoided, how to knowingly assess the risks at hand.

If you have any questions regarding the battle of the forms or other legal issues facing your company, or if you would like to conduct training of your sales professionals, contact Brian Cressman or another MacDonald Illig attorney at 814/870-7600.

MERCYHURST LAUNCHES NEW BACHELOR OF SCIENCE IN NURSING

With nursing one of the fastest-growing occupations in the U.S., Mercyhurst University recently announced a new addition to its programs: a four-year Bachelor of Science in Nursing (BSN). This expansion of Mercyhurst’s nursing and allied health portfolio continues the University’s 50-year nursing education legacy. Starting fall semester 2022, the new BSN program will provide the latest in curricular innovations, an outstanding lineup of clinical opportunities, and a home in the University’s newly renovated nursing facility. The program is the latest addition to a multiyear plan designed to strengthen and expand many of the university’s health-care programs. As part of the consolidation of its North East campus with the Erie campus, Mercyhurst has relocated all of its nursing and allied health programs to the Erie campus. Students now have the option to enroll in either a two-year associate degree nursing program and then an RN-to-BSN completion program, or enroll directly in the four-year BSN program, affording them the opportunity to get a more traditional college experience including participation in NCAA athletics. “Mercyhurst is committed to helping students achieve their goals of becoming exceptional health-care professionals, and this newest program is consistent with our Mercy vision of integrating excellence in the liberal arts, professional and career-path programs, and service to regional and world communities,” said Dionne Veitch, vice president for Enrollment. “We’re thrilled to be able to offer so many educational opportunities for prospective nursing students from a practical nursing certificate to an MSN in Integrative Nursing Leadership, and now a traditional four-year BSN program.” For more information, visit mercyhurst.edu.

THE ERIE COMMUNITY FOUNDATION PRESENTS $775K IN SCHOLARSHIPS TO NEARLY 500 AREA STUDENTS

The Erie Community Foundation’s donors and Foundation President and CEO Karen Bilowith recently presented scholarships totaling $775,000, from 138 different scholarship funds, to nearly 500 students. The event was held June 22 at the Gannon University Yehl Ballroom. In all, 400 different donors contributed to the education scholarship funds. Danny Jones, chief executive officer of Greater Erie Community Action Committee (GECAC), delivered the keynote address. Each year, The Erie Community Foundation and its affiliates in Corry, North East and Union City, award scholarships to students throughout the Erie area. The availability of scholarships is publicized through local high school guidance offices. Each scholarship is distinct and recipients are selected in accordance with criteria established by the donor. For details, see eriecommunityfoundation.org.

Starting this fall, Mercyhurst University will offer a four-year Bachelor of Science in Nursing. The program is the latest addition to a multiyear plan designed to strengthen and expand many of the university’s health-care programs.

PENN WEST CONSOLIDATION BECOMES A REALITY

The long-awaited consolidation of Edinboro, Clarion and California Universities into Pennsylvania Western University (PennWest) officially took effect July 1. A state law approved in 2020, known as Act 50, required the state system of higher education to redesign itself to be more efficient and better managed. In turn the legislature agreed to boost state funding for public higher education. According to a report by Erie News Now, Chancellor Daniel Greenstein said that the system changes, along with a request for a 15-percent boost in state funding in the upcoming budget year, aim to make college more affordable for low and middle income families in the state.

According to Green, about 60 percent of Pennsylvania jobs now require at least some higher education, while only 51 percent of adults in the state have that. “We have what’s called the talent gap and that’s a big gap, and it’s a growing gap, it’s expected to grow considerably by 2030,” he said. “Not filling that gap is problematic for the state of Pennsylvania, because it can’t remain competitive economically, and of course as industry finds that it can’t source the workforce that it needs in a particular region it moves to another region — and so obviously this is something that we’re trying to counter,” Green added. For more information, visit pennwest.edu.

NEW BEHREND FACULTY, LABS EXPAND MWRI-ERIE PARTNERSHIP

A new biomedical research lab at Penn State Behrend is accelerating the study of ERK, a cellular signaling pathway that is hyperactivated in 90 percent of all human cancers. The 2,200-square-foot research facility includes an advanced microscopy lab, where researchers and students use a confocal microscope to produce high-resolution, 3D views of cancer cells. The work in the lab supports Behrend’s partnership with Magee-Womens Research Institute in Erie (MWRI-Erie). The $26 million women’s health initiative is bringing locally focused clinical medical research trials to the Erie region. Behrend is the academic and translational research partner of MWRI-Erie. The college has opened two new labs that support the partnership: the biomedical lab, in the Advanced Manufacturing and Innovation Center, and an advanced molecular biology teaching lab in the Otto Behrend Science Building. Behrend students are contributing to research in both labs. “These research spaces provide an opportunity for our students to be part of collaborative research teams,” said Ivor Knight, director of the Biomedical Translational Research Center at Behrend. “That’s a game-changer, in terms of career preparation. But the real impact will be felt outside the labs: The work we do here will directly contribute to new treatments and medical interventions that will improve the health of women in and beyond Erie.” The labs were funded by a $1.1 million grant from Hamot Health Foundation and the Erie Community Foundation. In addition to microscopy, they provide the space and instrumentation needed for cell-culture research, molecular cloning, immunoblot gel imaging and nanoparticle tracking analysis. Beyond an initial $6 million grant from the Erie Community Foundation, including the lab funding, the MWRI-Erie funders — Magee-Womens Research Institute and Foundation, Penn State Behrend, the Hamot Health Foundation and UPMC — have each committed to investing a minimum of $5 million to expand medical research in Erie.

For more information, visit behrend.psu.edu.

10 KNOX LAW ATTORNEYS SELECTED FOR 2022 PA SUPER LAWYERS® AND RISING STARS LISTS

Bryan Baumann, Mark Claypool, Neal Devlin, Guy Fustine and Tom Tupitza, shareholders at Knox Law, have all been selected for inclusion on the Pennsylvania Super Lawyers® list for 2022. Additionally, five attorneys have been selected for inclusion on the 2022 Pennsylvania Super Lawyers® Rising Stars list: Alex Cox, Julia Herzing, Matt Lasher, Mike Musone and Jeremy Toman. Super Lawyers® is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. “Rising Stars” candidates must be 40 years old or younger, or have practiced law for 10 Baumann is a full-time litigator and AV Preeminent® Peer Review Rated (MartindaleHubbell). He has extensive experience representing clients in commercial and construction disputes, injunction proceedings, personal injury matters, and trust & estate disputes. He is licensed to practice in Illinois, New York and Pennsylvania and is also included in The Best Lawyers in America® for Litigation - Construction. Claypool is Board Certified in bankruptcy law by the American Board of Certification and a full-time member of Knox Law’s Bankruptcy and Creditors’ Rights Group. He is an appointed member of the Local Rules Committee for the U.S. Bankruptcy Court for the Western District of Pennsylvania, and is included in The Best Lawyers in America® for Bankruptcy and Creditor Debtor Rights/Insolvency as well as Reorganization Law. Devlin focuses his practice on litigating complex disputes, and he has litigated such disputes in state and federal courts throughout the country. He has been included in The Best Lawyers in America® for Commercial Litigation since 2013. Fustine’s practice is focused on business reorganization, commercial litigation, and sports law. He is board-certified in business bankruptcy law by the American Board of Certification. He has been included on the Best Lawyers in America® list since 1993.

Tupitza advises clients in the private, public and nonprofit sectors on finance, real estate and governance matters. He is a director of Perry Construction Group, Inc., and of several charitable organizations, and has served as Knox Law’s president since 2007. He is AV Preeminent® Peer Review Rated (Martindale-Hubbell), has been listed on the Best Lawyers in America® list since 2012, and has been selected as Best Lawyers® “Lawyer of the Year” for the Pittsburgh metropolitan area in Public Finance Law (2020 & 2015) and Land Use and Zoning Law (2016). Cox focuses his practice on litigating complex and commercial disputes in state and federal courts throughout the country. He has significant experience in a wide variety of subject matters, including contract, business, and intellectual property disputes, along with labor and employment litigation, administrative and regulatory matters, trusts and estate disputes, and appellate and constitutional law practice. Herzing focuses her practice on a variety of labor and employment matters, including litigation. She works with both private and public employers, counseling and representing clients on compliance with workplace laws, hiring and firing issues, and collective bargaining. She also advises public and private educational institutions on Title IX matters, including investigations and responding to complaints. Lasher is new to the 2022 list. He concentrates his practice on labor and employment law. He assists clients in navigating various workplace matters including the unemployment system, Fair Labor Standards Act (FLSA), Americans with Disabilities Act (ADA), Equal Employment Opportunity Commission (EEOC) guidance, Occupational Safety and Health Administration (OSHA) guidance, and more. Musone is also new to the 2022 list. He is a fulltime litigator who focuses his practice representing commercial enterprises. He also represents municipalities in tax assessment appeals and practices Orphan’s Court litigation, including will contests, trusts and estate matters. Toman, who is licensed in Pennsylvania, Ohio and New York, focuses his practice on real estate, business law and environmental law. He has represented commercial clients and individuals in all phases of commercial and residential real estate transactions. He has negotiated numerous oil and gas leases, earning his clients over $27 million in up-front bonus payments. He has also advised clients on business formation, choice of entity, business structure and organization for publicly and privately held entities, both for-profit and nonprofit.

EVIDENT FINANCIAL NAMES MAKOWSKI AS CHIEF INVESTMENT OFFICER

David Cullen, chief executive officer and founder of Evident Financial, announced the promotion of Richard Makowski as chief investment officer. Makowski oversees research, selection of asset classes and investment funds, and makes investment decisions in client portfolios. In addition, he heads the firm’s Investment Advisory Board. Makowski, born and raised in Cottbus, Germany, attended Gannon University on an academic and football scholarship. He holds a B.S. degree in finance and an MBA from Gannon University. He is pursuing the Chartered Financial Analyst designation and is a Certified Financial Planner candidate.

Headquartered in downtown Erie, Evident Financial is a fiduciary investment advisory firm.

WALKER FILTRATION ANNOUNCES NEW GM, INTERNAL TRANSITION OF LEADERSHIP

Walker Filtration recently announced that Simon P. Taylor has been appointed to the role of general manager of Walker Filtration Inc. as of April 2022. He supersedes Richard P. Taylor, former president and general manager, who retired after 32 years with Walker Filtration Group and will serve as a part-time consultant, specializing in business and acquisition endeavors. Simon Taylor has been an employee of Walker Filtration for 12 years, eight of which were spent as the general sales manager of Walker Filtration Inc. Walker Filtration is an established and recognized leader in the compressed air and gas technology industry. The company serves over 100 countries with offices in the United Kingdom, the United States, Australia and Japan.

MBA’S FRIEND NAMED TO CITY & STATE PA’S ‘FORTY UNDER 40’ LIST FOR 2022

The Manufacturer & Business Association’s (MBA) Jezree Friend has been named as an honoree on City & State PA’s “Forty Under 40” list for 2022. Friend is the assistant vice president of External Relations at the MBA.

In the list, published at www.cityandstatepa.com, City & State PA recognizes 40 individuals under the age of 40 in Pennsylvania, who have distinguished themselves in the areas of government, advocacy, media, business, labor and academia. Honorees have been nominated by their peers and selected in partnership with City & State’s editorial and advisory boards. Friend, who joined the MBA in 2018, is responsible for building strong relationships with Pennsylvania’s state and federal elected officials, the media and the public. He manages the MBA’s Government Affairs Department and political action committee, and lobbies on behalf of a pro-business agenda.

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