one four six three cars of new bedford incorporated versus nike inc at all to begin with is that i find that there is a large difference between the complaint that we filed and the response that was made by nike in this case the complaint that we filed goes into a whole range of what we say were in illegal activities by by nike and terminating the relationship which was a twenty seven year course of dealing with tween carders and nike that went along very profitably and very smoothly with respect to both very successfully and then all of a sudden in the spring of this past year two thousand and thirteen there was a terminations letter from nike's what the defendant nike succeeded in doing i believe was to lead the district court into reviewing our complaint which which alleged a series of as i said illegal activities by by nike and in terminating and narrowed those into a document which is the so called terms and conditions of sale which is contained in the appendix and was made part of the complaint our complaint very specifically alleged pardon me that the that the relationship was partially partially defined by a whole series of invoices and one we're talking to the words of the envoys that does say that it has some words to the effect of anything that has to do with the relationship but that does not i would suggest your honor and i think that's a very significant question in the case that does not in our view take away the import and the effect of various massachusetts statutes and laws that would apply and even a federal law there are questions of uniform commercial code in terms of how long a notice needs to be given with this no express written contract that governs you overall relationship this is of course the massachusetts antitrust act up to ninety three the chapter ninety three day and and of course the robinson it's called a contract but that's because the semantics of gradually evolved from terms and conditions of seal which is the title of the document and then when you read the fine a print you agreement they want to say that it's that plus the order plus the credit account that together constitute quote unquote the agreement well now they've come halfway told convincing someone that they have a contract that is defined by that very invoice that that's the overall voice i think artists would be in a hard place here to argue that after it got wrong and there were approximately twenty to thirty invoices a month were orders and then invoices and every single time this  invoice would appear except i have an asterisk on it it did change about two years ago with a different you're saying if you were suing over a breach of the agreement as it stood three years earlier you wouldn't be found this that no i would say that carter's would be bound by virtue of having to accept the terms of the young voice for the next order that it placed but not something that would stretch over the period of twenty apply we will start a national that has to do with the subject matter of the order in the invoice and we should read here at cause it has to be an action based on this and voice yes that's that that's what my position with that's what our position would big and it's the fear reading and the fear understanding and we have to bring an element of the fairness of understanding that carter's would have i'm not going to stand and argue that well they didn't read it and therefore  they don't have to live with it they are charged i would concede with reading the invoice and knowing what it is but a reasonable reading of that invoice would not suggest to carter's that twenty seven years of st profitable what amounted to one third of their business by the time the relationship ended in one night in two thousand and thirteen that that would be governed by a clause that said forget about state antitrust law forget about national antitrust law forget about u c c law and this document that has across the top terms and conditions of sale becomes not only that but by virtue of the final language in the you and the invoice becomes an agreement and then when it reaches judge would lock it becomes a contract there is no form clause in a contract in this case if you accept the premise that this invoice does not constitute a contract that something that quite honestly came in in their youth which was an agreement not to pursue discovery until the motion to dismiss was heard the problem and perhaps we didn't look at this full face and the answer would be no my argument is not focused on getting into that procedural battle because i don't think that that really carries the day what carries the day here goes back to a very basic principle of documents speak for themselves major titles on dog human talk all terms and conditions of sale all right so if we accept there is a question about whether the invoice terms cover only the think he made the mistakes in but were to take again not to be repetitive but to take something that is an invoice and then to treat it as if it's a negotiated contract with a firm selection clause i would submit that there are things in that invoice that you're going to see including a one year statute of limitations if you will a one year limitation on the clause contractual you're going to see  international operation is doing this in restraint of trade and that's something that we were looking at and heading toward but how can you say that that subject to those limitations in that invoice it was a fairy f just agreed that the form selection cloth governs it to us what it means and it might be helpful for me to read the exact language if this any action of the the phrase arising out of or in connection with is in fact broader than the term that's used in the choice of law clause as to why one phrase is used in one clause in one in the other i don't have an answer well i think it's i think it's broad enough i think it's broad enough to cover it but my point is that the form selection clause is even broader than that so that is an argument that carters is free to have in oregon  they have agreed to this agreement they attached it to their verified complaint and they swore that they complied with all the terms of the agreement which includes the terms that required them to know what the agreement is for order when they never requested an evidentiary hearing and they attached documents to their opposition the motion to dismiss that we move to strike and i think ever opposed their appellate briefing before this court relies on those documents they are simply not permitted to do an end run around their failure to ask for an evidentiary hearing by now saying that the district court erred by