## Facts

- Solae, LLC (Delaware LLC; principal place of business in Missouri) supplied soy lecithin to Hershey Canada, Inc. (Canadian corporation; principal place of business in Ontario) for use at a Canadian manufacturing plant.
- In late 2005, the parties negotiated a 2006 pricing/volume arrangement under which Hershey Canada would order up to 250,000 pounds of lecithin at an agreed price; Hershey Canada treated this as the governing “quantity contract” without any Delaware forum clause.
- The parties’ practice was that Hershey Canada faxed purchase orders referencing the quantity contract; Solae faxed order confirmations and then shipped; Solae later issued invoices.
- In September 2006, Hershey Canada placed an order under the 2006 arrangement; Solae’s order confirmation referenced “Conditions of Sale,” and the post-shipment invoice attached those conditions.
- Solae’s conditions included a clause selecting Delaware courts as the exclusive forum for disputes arising from the sale.
- Hershey Canada alleged the September 2006 lecithin was contaminated, triggering a recall and plant disruption in Canada, and sued Solae in Canada.
- Solae filed a Delaware action seeking declaratory relief and alleging breach of contract; Hershey Canada moved to dismiss for lack of personal jurisdiction.
- The parties agreed that the CISG governed contract formation and the effect of additional terms.

## Issues

1. Under the CISG, did Solae’s “Conditions of Sale,” including a Delaware forum-selection clause, become part of the contract for the September 2006 shipment?
2. If the forum-selection clause was not part of the contract, did Hershey Canada otherwise have sufficient contacts with Delaware to support personal jurisdiction?

## Decision

- The court granted Hershey Canada’s motion to dismiss for lack of personal jurisdiction.
- The court held the forum-selection clause in Solae’s conditions of sale did not become part of the parties’ contract under the CISG and therefore did not establish consent to Delaware jurisdiction.
- The court held Hershey Canada’s Delaware contacts were insufficient to support either general or specific personal jurisdiction.

## Legal Principles

- Under the CISG, a forum-selection clause added through standard terms after contract formation is a material alteration and does not become part of the contract absent clear assent by the other party.
- Receipt of confirmations or invoices containing new standard terms, without proof of agreement by authorized personnel, is insufficient to show acceptance of a material additional term under the CISG.
- Personal jurisdiction cannot be based on an unenforceable forum-selection clause; absent consent, due process requires forum-related contacts that are continuous and systematic (general jurisdiction) or connected to the claim (specific jurisdiction).
- Isolated, unrelated contacts with the forum (e.g., an unrelated UCC financing statement filing) do not establish minimum contacts for jurisdiction over a foreign defendant in a dispute centered on foreign transactions and injury.

## Conclusion

The court dismissed the Delaware action because the CISG did not incorporate Solae’s later-sent conditions of sale containing a Delaware forum-selection clause, and Hershey Canada lacked sufficient Delaware contacts to support personal jurisdiction.


Solae, LLC v. Hershey Canada, Inc., 557 F. Supp. 2d 452 (D. Del. 2008)