morning your honour's may please the court the lord is very clear on the issue of abra tracing over trey sion is clearly a matter of contract while there is a public policy favoring arbitration whenever possible it does not replace the necessity for a voluntary agreement to arbitrate it's very very clear absent a clear agreement to submit arbitrations the courts cannot infer that the right to a jury trial has been waived i respect we submit that the evidence presented at the lauren motion matter does not support the lower court's ruling clearly there was no clear agreement to submit this to arbitration there were comments by the lower court about various quotations submitted by custom but the evidence that was submitted at the hearing shows that kuhn of co presented its own purchase order that's page fifty seven dollars what i think was the deciding factor which was those purchase order but yet despite having three pages of clarification there was no indication that the terms and conditions that were hypothetically communicated to custom which we don't believe they simple contracts nowhere is there any reference on those two documents that say that the terms and conditions that custom was trying to unilaterally impose upon qunu go were part of the contract of the local court went through a extended i believe in a correct analysis as to why the terms and conditions were included but i submit that when you're dealing with arbitration there's a higher burden that the party that is attempting to impose those terms and conditions should be made clear and very very clear to the other side now in the quotations which were not accepted by q and a go it says turn to in conditions apply it doesn't say they incorporated here and by this reference then i think it's the lower court minimized and basically said that it was totally irrelevant that whether or not kuhn to go accepted the terms and conditions of custom i believe was incorrect i think it's a critical factor counsel that's that's a little bit of a misrepresentation of the district court didn't say that it was your relevant as to whether you accept them so it was irrelevant whether you received them there's a difference i agree i misspoke and i apologize to the court but i believe whether or not they received them is very very important as to whether or not couldn't go accepted them if it never received them then there's no way they could accept to them there has to be a clear agreement to accept those terms and conditions  unfortunately this is a relatively old case and i do agree with that and but once again i think there's a higher burden even under today's law especially the case that i had started to start versus square it has to be easily assessable and i think that custom was under a duty that if it wanted to impose arbitration number one it had it definitely make it clear to couldn't go that it was imposing those conditions but if you take a look the terms and conditions themselves you have a very very small tight paragraph without a separate heading without any bold print without specifically putting clearly putting  buyer once again the evidence was that couldn't go and never it received any of those terms and conditions the declaration of michael's source he said he reviewed the there were not any attachments to terms and conditions in the four hundred and twenty pages that were submitted by custom there was not a single mention or production of a document of terms and conditions you said a moment ago that you never accepted the quotation but the district court thought that the quotation was an offer to sell in your purchase order was an acceptance of that offer why is that wrong well i accepted customs location or all unit go had its say was i accept your offer and therefore offer acceptance very very simple but that's not going to go did it go said was we are this is our purpose or this is the document we consider to be controlling and while it might have quoted some of the language customs quote unquote quotation it did not include any fact that you have a somewhat different language in your acceptance can still create a contract can't put it under certain circumstances but i don't believe in the fact that we have here because if there was supposed to be an acceptance of terms and conditions there has to be some sort of there's not a single document with a name on it that says that we accept your terms and conditions and even though it might be an old case in a might be common law because customs trying to impose its terms and conditions i believe it has a duty to at least present evidence showing that they actually produced the terms and conditions and there's no evidence before before the lower court that said they actually did that it said it's our custom and practice did you ever ask for the one you got this quotation the subject took terms and conditions but did you ask to see  them once again the lower court made a indication that we're dealing with sophisticated parties but we really weren't what we were dealing with is with contract administrator  and and so basically the evidence is that couldn't go ignored the nine quotations custom and issued its own purchase order so i think the evidence would indicate that if because clinical was going to set the terms and conditions that had to be referenced somewhere in the purchase order or the order acknowledgement and because it did not incorporate that and because cus disputes to arbitration what i think what customs trying to do is insert insert terms and conditions after the contract has already been accepted and i believe that's inherently u document that says terms and conditions that's the evidence that you had before the lower court so if they were quote unquote part of the contract it was supposed to be included in the quotation marks you have to understand my client is involved with manufacturing parts for nuclear submarines and so it's very very important that the custom died that was used to put the tubes that are  necessary and so part of the problem we have is that they did not properly manufacture the tubes and another critical factor is they are refusing to return the dye which cannot be used anywhere else but that's irrelevant the thousand dollars but the problem is my clients in los angeles and they're trying to force us to arbitrate in new york city and which even customers in new jersey company and you know how long you think would take that to arbitrate this case you have an estimate probably four or five days  the court mentioned that that couldn't go did not respond to the terms and conditions you can't respond to something that you never received no one can respond to things that are plainly written in something that you've the formal document that you received from the other side but if you did not incorporate that document goes not just referred to it's referred there and then at a curious curious party might say well what are the terms and conditions that would be true if you were going to accept their quotation chose not to accept their quotation and issued its own purchase order which in my mind said  conditions and this is the contract these negotiations took place in two thousand and nine pre you know pretty much internet so to speak and while there's been issues relating to m i respectfully submit that the the record does not support the court's ruling and that it is reversible error to force could it go to submit to arbitration and whatever time i have left i would like the opportunity with the court's permission to rebut any other issues raised by opposing counsel so in this is cords september two thousand and sixteen order to the district court this court said this court directed the district court to make factual findings as to what was the offer what was  the contract is the quotation the last quotation that was accepted by the purchase order and under the u and that's modified by the purchase order to the extent that there are what lesser quantities ordered but the district court clearly fan and that the purchase order referenced the quotation and it in large respects repeated the quotation you know as to the larger repeated the terms as to what the items were what the specifications were what the prices were and so on there's all these technical specs in there a lot of that stuff is repeated in the district court found that under  unless provisions are in conflict it's an acceptance there's no conflict between the terms and conditions which are referenced nine times in every quotation there is no conflict between those terms  they allege that the plaintiff would be the owner of the di that defendant would not use any outside personnel or contractors that after the project was completed plaintiff would be entitled to possession of the drawings terms and conditions were sent with the invoices but those who it was after they had already accepted the after the contract had been formed by their purchase order in your view correct so if we look at owens basically saying that mr owens submitting his declaration mr zorzi submitting is that the race and custom ally taking the position that the terms and conditions were provided to the clinical clinical saying saying i'm pretty sure we sent them but i can't be sure and it was saying i'm pretty sure we didn't get them but i can't be sure that is very well and that's why the district court said in the end i can't make any findings as to whether something was actually sent and actually received website i pressed the button for terms and conditions how were they readily available i think it's actually easier than that and that was a point i wanted to get to and get you right now which is in the current setting where you have to click and find you know when you go on the internet to try to buy something to try to find something it's almost impossible to get a live person i mean that's the frustration if you can't with a few clicks or even one click get to the document you're looking for it's a big problem here it enough to just say our terms and conditions apply you have to say what they are that's the offer why should it be the burden on the other side to go and know whether we  know like you have a searching for the terms and conditions or even to ask you for them my why when your client you have the burden to to send him well i don't think they have the burden under the law i mean should  incorporate them into the contract it's the right thing to do isn't it well and that's what i was about to say i mean as a lawyer if they call this a should we include them i would say of course of course you should include them there's obviously a paperwork issue here and this is this the this is the change in the policy that mr owens talks about where you're going to have all these papers sent to the other side and the same terms and conditions will be repeated you know there be like twenty of these documents in the file again as a lawyer would have liked to have seen that sent right away busy of course i would but there's lots of terms and conditions and living in ask you next is given this crazy ambiguity and be curative about what were the terms and conditions and really that's why our three judge panel sent it back to the district court in the st place they got all these documents and said hey district court tell us what the contract is and i'm sitting here asking both sides again hey  contract and where is it we're arguing about and it's ultimately only about seventy five thousand dollars and all you're really arguing about is the forum in which this is going to be decided like can't you guys just mediated go go in front of our th circuit mediators and resolve it before you spend another seventy five thousand dollars plus litigating this and it seems really ridiculous to me and that's the problem a custom ours position is no you you said this is what we need you told us what you needed us to make we made it it didn't work and now you're blaming us so the issue was the money we've offered to and after this i don't think that's happened i'm under your view of how the u c c contract formation should be analyzed is there any substantive element to what you could have put in the terms and conditions i mean suppose there were a terminal and we also charge a processing fee that's one hundred percent of the purchase price so you're more effectively doubling the price but by something we put in the terms i think that popped into my head i mean  dollar would be something that actually conflicts with what is in the other documents and then there's an issue as to what was accepted or not the other would be unconscionable and so something that you describe your honor i think since we're talking about arbitration though could you go again repeats today actually the exact words were it's arbitration you're giving up the right to go to court there's a higher burden and we keep hearing that that appears in the papers there's no case  that states were disfavoring arbitration agreements and so there shouldn't be a higher burden and again and the i guess the nd part of that i'm not going to repeat it all but it gets back to this issue of sophisticated parties are not sophisticated parties this is not a consumer arbitration agreement this is not an employ them and employment arbitration agreement so much of the case law and that's what i usually deal with as as an attorney is those kinds of arbitration agreements we're now you've got all these special rules protect employees and consumers and that's i mean again it's going to cost council said this is a company that makes new parts for nuclear submarines this is not you know some low level employee being asked to sign a take great exception with the fact that they've offered to return the guy that's not the case but more importantly i take exception when opposing counsel characterize qunu goes purchase order as an acceptance of the quotation if it was an acceptance of a quotation it would have been i except in regards to the production of the terms and conditions the court m  valuated the evidence the evidence by mr owen it says i cannot give you any date that the terms and conditions were sent the issue was it was our custom in practice just the fact that it may have been their custom and practice doesn't mean on that specific day that the terms that is why that's what the district court said i can not i'm not going to resolve that i can't i don't have any tools for doing that so i'm just i'm going to decide t this week we can't find it but he couldn't he couldn't say and did not say very careful i don't know who had handed preparing them but he was he was very careful of what he said he didn't overt over and he was case well he said i we couldn't find it we didn't find it in our files any