## Facts

- Packgen manufactured polypropylene intermediate bulk containers used to transport and store hazardous chemical catalyst.
- Packgen purchased laminated polypropylene fabric from Berry Plastics Corporation and related entities (collectively, Berry) for use in redesigned containers.
- Packgen issued purchase orders; Berry shipped the goods and sent invoices several days after delivery.
- Berry’s invoices contained boilerplate terms on the reverse side, including a clause shortening any limitations period to one year.
- Packgen later discovered defects in the supplied material and sued roughly four years after receiving it, asserting breach of contract, warranty (express and implied), and negligence claims.
- Berry sought summary judgment, arguing the invoice’s one-year limitations clause became part of the parties’ contracts and barred all claims.
- Packgen argued the invoice terms were not part of the contract and, even if treated as a written confirmation between merchants, the one-year clause was a material alteration requiring express assent.

## Issues

1. Whether Berry’s post-delivery invoices operated as written confirmations under Maine’s UCC § 2-207 such that the invoice boilerplate could become contract terms.
2. Whether the invoice’s one-year contractual limitations period was an additional term that materially altered the parties’ agreement under UCC § 2-207(2)(b).
3. Whether the record permitted enforcement of the one-year limitations clause as a matter of law on summary judgment.

## Decision

- The court denied Berry’s motion for summary judgment on all counts.
- The court held there was a genuine dispute of material fact as to whether the one-year limitations clause materially altered the parties’ contracts under Maine’s UCC § 2-207(2)(b).
- Because the enforceability of the clause could not be resolved on the existing record, Berry was not entitled to judgment as a matter of law on its limitations defense.

## Legal Principles

- Under UCC § 2-207, a written confirmation between merchants may add terms to an existing agreement, but additional terms do not become part of the contract if they materially alter it.
- A term “materially alters” the agreement if it would cause unreasonable surprise or hardship if incorporated without the other party’s express awareness or assent.
- A significant reduction of the default UCC limitations period (commonly four years under UCC § 2-725) may be treated as a substantial change, particularly when presented only in inconspicuous invoice boilerplate.
- Course of dealing and usage of trade evidence may bear on whether an additional term would be unexpected; conflicting or incomplete evidence can require factfinding and defeat summary judgment.
- On summary judgment, the moving party must show no genuine dispute of material fact; where enforceability of a purported additional term turns on factual questions, the issue ordinarily cannot be decided as a matter of law.

## Conclusion

The court refused to enforce the invoice’s one-year contractual limitations clause at the summary-judgment stage because the record presented a triable fact question under Maine’s UCC § 2-207(2)(b) as to whether the clause materially altered the parties’ contract.


Packgen v. Berry Plastics Corp., 973 F. Supp. 2d 48 (D. Me. 2013)