## Facts

- Brown, a manufacturer, provided Hercules a written proposal/quotation for a T-100 trim press, attaching printed “terms and conditions of sale” that included a broad indemnity clause requiring Hercules to indemnify Brown, including for Brown’s own negligence.
- The proposal described itself as a quotation submitted for approval and part of negotiations, rather than a firm offer capable of immediate acceptance.
- Hercules later issued a written purchase order for the trim press, adopting the main specifications (with a modification) but omitting any indemnity obligation.
- The purchase order expressly limited acceptance to its own terms and rejected additional or different terms; it contemplated acceptance by signing/returning an acknowledgment copy, shipping, or beginning performance.
- Brown did not sign and return the purchase order’s acknowledgment copy, but sent its own order acknowledgment and invoice that repeated Brown’s standard terms, including the indemnity clause, and included a notice stating Hercules should object within seven days or the terms would be deemed correct.
- Hercules responded only to correct a machine specification and stated “all other specifications were correct,” without addressing indemnity; Brown shipped the press and Hercules paid the full price after delivery.
- A Hercules employee was later injured using the press and sued Brown; Brown settled and sought contractual indemnification from Hercules based on the indemnity clause contained in Brown’s forms.
- A jury found for Brown and the trial court entered judgment for Brown; Hercules appealed.

## Issues

1. Whether Brown’s initial proposal/quotation constituted an offer, or whether Hercules’s purchase order was the operative offer for contract formation.
2. Whether Brown’s acknowledgment operated as an acceptance under UCC § 2-207(1) or as a counteroffer.
3. If Brown’s acknowledgment was an acceptance with additional terms, whether the indemnity clause became part of the contract under UCC § 2-207(2), given the purchase order’s express limitation of acceptance and the risk-shifting nature of the clause.

## Decision

- The appellate court reversed the judgment for Brown.
- Brown’s proposal was a quotation/invitation to negotiate, not an offer; Hercules’s purchase order was the offer.
- Brown’s acknowledgment functioned as an acceptance but contained an additional term (the indemnity clause).
- Because the purchase order expressly limited acceptance to its own terms, the indemnity clause did not become part of the parties’ contract.
- Hercules therefore had no contractual duty to indemnify Brown for the employee injury claim or settlement.

## Legal Principles

- A quotation or proposal framed as subject to approval or further acceptance is generally an invitation to negotiate, not an offer.
- Under UCC § 2-207(1), a definite and seasonable expression of acceptance can form a contract even if it states additional terms.
- Between merchants under UCC § 2-207(2), additional terms in an acceptance become part of the contract unless: (a) the offer expressly limits acceptance to its terms; (b) the additional terms materially alter the contract; or (c) the offeror timely objects.
- An offer’s explicit “acceptance expressly limited” language prevents incorporation of additional terms contained only in the offeree’s acknowledgment.
- Broad indemnity terms shifting liability to the buyer, including for the seller’s negligence, are typically material alterations and ordinarily require affirmative agreement rather than silence or routine performance.

## Conclusion

The court held that the buyer’s purchase order controlled contract formation and, by expressly limiting acceptance to its terms, prevented the seller’s added indemnity provision from becoming part of the contract; the seller could not recover indemnification for its settlement of an injury claim.


Brown Mach., Inc. v. Hercules, Inc., 770 S.W.2d 416 (Mo. Ct. App. 1989)