NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0073n.06

Case No. 20-5671

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRASS REMINDERS CO., INC.,

Plaintiff-Appellant,

v.

RT ENGINEERING CORP.,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

KENTUCKY 

BEFORE: BOGGS, SUTTON, and NALBANDIAN, Circuit Judges.

BOGGS, Circuit Judge. This case concerns man and machine, miscommunication, and the 

doctrine of incorporation by reference. But above all, it concerns one man’s failure to read the 

terms and conditions of his contract. Those terms required him to correctly specify variations on 

manufacturing materials, and he failed to do so. There is no genuine dispute that this failure was 

the ongoing and ultimate source of this contractual breach. Thus, the district court did not err in 

granting summary judgment against the suit by Brass Reminders, and we affirm. 

I. FACTS AND PROCEDURE

A. Facts

Brent Durham, the president and co-owner of Brass Reminders, a Kentucky company, 

founded the company twenty-nine years ago. Named for its original mission to make engraved 

brass products, Durham shifted the company’s focus to make—now almost exclusively—small 
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car decals sold in retail stores such as tourist shops and college bookstores. Until 2016, Brass 

Reminders had packaged its decals by hand. When done by humans, this is a simple task: Putting 

the decal in front of a cardboard “chipboard” (a piece of cardstock that provides rigidity to the 

package) to protect it from creasing, placing the decal into a small plastic bag, and stapling the 

package with a cardboard header card that also hangs the package on retail hooks.

In April 2016, Durham asked RT Engineering, a Massachusetts corporation, if it would 

build a custom machine to package his decals at five hundred units an hour. In May, RT sent Brass 

Reminders a price quote detailing the project and costs. The quote contains multiple pages along

with a table of contents that lists many items, including “Item I,” which is entitled “Customer 

Responsibility,”

1

and “Item P,” which references RT’s “Terms & Conditions.” But instead of 

including the full text of the terms and conditions, Item P refers the reader to RT’s website (“See 

our website for 2016 Terms & Conditions”) and provides a hyperlink. The terms and conditions 

require the customer to provide the dimensional tolerances of the product that will be fed through 

RT’s custom machines: 

Customer will be responsible for providing engineering drawings and sample parts 

during the design, debug, and testing phases of the project. Sample parts and 

documentation furnished will need to be a true and complete representation of the 

product to be processed with the Seller’s equipment. Typical parts and tolerances 

or variations of the parts need to be identified. This will ensure that the Product is 

designed to accommodate the variances from part to part and to include the control 

features . . . . Specifically, dimensional tolerances of each product shall be provided 

1 The term “Customer Responsibility” is set out directly, not merely incorporated by reference:

The customer is responsible for supplying all listed materials (if applicable) to RT 

prior to the due date. This date will be developed by the Project Manager and 

communicated to the customer far in advance of the on-site requirement. Failure 

to supply the services or materials listed may change the delivery date of your 

machine. 

• Decal samples representing all sizes to be processed

• Chip board samples representing all sizes to be processed

• Header samples representing all product sizes 
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along with all process specifications which will in any manner effect [sic] the 

performance of the Seller’s equipment . . . . Failure on the part of the Customer to 

meet any of its responsibilities may lead to delays in RT Engineering’s performance 

or Seller’s inability to perform, for which RT Engineering will not be responsible.

On May 20, RT forwarded an invoice for $108,426 to Brass Reminders (approximately 

forty percent of the $279,083 quoted total price). Within days, Brass Reminders made the initial 

payment in a purchase order referencing the quote. The district court found that the contract was 

formed at the time Brass Reminders made the initial payment.

The remaining relevant facts span several years. In the main: The conflict involves Brass 

Reminders’s and RT’s miscommunication about the dimensional variations and consistency of the 

materials (decal, chipboard, plastic bag, and header card) that the machine was purposed to 

package. The sample materials that Brass Reminders supplied to RT during the initial design phase 

did not have significant variations, likely because they were of limited quantity and cut from the 

same batch of cardstock. RT believed this is why the early samples did not have significant 

variances. It was not until RT had nearly finished the machine and needed to test it on a large bulk 

of materials that it learned that the general run of materials had significant, and fatal, variations.

These variations came from two primary sources: Brass Reminders’s decision to save costs by 

shear-cutting its materials, as opposed to using the more precise die-cutting method, and its 

decision to store its materials in a non-climate-controlled warehouse. Throughout the machine 

project, different components presented different problems. While some problems were resolved, 

others remained a continued source of concern.

In June 2016, less than a month after contract formation, RT and Brass Reminders held an 

“on boarding” meeting. Before the meeting, RT sent Durham relevant documents. One of the 

documents, discussing the Factory Acceptance Test (the final live demonstration where the 

customer approves and accepts the product), stated: “Please supply the exact materials/product 
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that you will be running in the machine for [Factory Acceptance Test] . . . . Machine performance 

with material other than specified for it, that results in a failed acceptance test will be the customers

[sic] responsibility.”

After the on-boarding meeting, Durham signed a copy of RT’s Customer Introduction 

Agenda. The signature page signed by Durham contains an acknowledgement that his signature 

represents “acceptance and approval of the process and delivery,” as well as a specified 

acknowledgment of RT’s terms and conditions. The terms and conditions were identified in bold 

immediately above (not below) the signature line.

Near the end of June, an RT engineer asked Durham to forward information needed to 

write the Functional Specification Document (FSD). The next day, Durham emailed RT the

dimension specifications of the decal, chipboard and header-cards including the principal lengths 

and widths of “mini,” “small,” and “standard” size decals, as well as the various chipboard and 

header cards that Brass Reminders used. But the specifications only listed the principal sizes of 

each packaging piece used, not any tolerances or dimensional variances of those principal sizes. 

For example, Durham wrote that the “standard” decal size had a maximum of 36 square inches 

overall, with a length of 7.75” maximum and 1.5” minimum and a height of 5.75” maximum and 

0.75” minimum. Durham then wrote below, “Decals will always be square or rectangular but can 

be ANY dimension subject to the above minimums and maximums.” RT wrote the FSD based on 

the dimension specifications Durham provided, and Durham signed the FSD in July, which 

authorized RT to continue to develop the machine. 

According to lead RT engineer Darren LaBonne, RT understood the dimension 

specifications to abide by the American Society of Mechanical Engineers (ASME) industry 

standard for how to write tolerances, and so it designed the machine accordingly. According to 
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RT, a figure written with a “two-place decimal point . . . indicates it is going to be plus or minus 

ten thousandths of the length” or height (or other dimension), and a figure written with one-place 

decimal point (e.g. 1.5”) will be “plus or minus twenty thousandths” of the listed dimension. But 

RT would later learn, after the machine was nearly finished, that Durham was unaware of the 

ASME standards and that Brass Reminders’s materials exceeded those tolerances. 

In September, Durham reviewed and approved the design of the machine. RT began to test 

the machine at a higher capacity in December 2016. RT asked Durham to supply larger quantities 

of the materials for the December test, as well as for the Factory Acceptance Test scheduled for

early the following year. Durham flew to Massachusetts to attend the December test in person. 

LaBonne testified, and Brass Reminders does not dispute, that until the December test, the 

materials Brass Reminders had supplied to RT “were a consistent thickness.” Previously, Brass 

Reminders had supplied RT a relatively small quantity of sample materials. RT relied on these 

samples for the design of the machine. It was not until RT needed larger quantities of materials to

test the machine’s high-output capacity that RT noticed variations in the materials that hampered 

machine performance.

In late February 2017, RT emailed Durham and told him that “some of the parts” Durham 

brought in December and shipped after “have issues the machine cannot process. If the chip board 

[sic] are severely bowed they will not feed through the friction feeders. Also we noticed that the 

board materials vary and the print quality suffers. Some of the boards are more porous and absorb 

the ink.” RT emailed Durham again in March, writing that “We have been dealing with material 

issues right along and it is really slowing progress down . . . . We need to be able to get these issues 

corrected in order to be able to cycle the machine at the output rate desired.” RT also requested a 
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call with Durham to discuss how to fix the issues. Durham responded, noting that he was aware of 

product variances and that the curling issue was because of humid storage conditions: 

I spoke with our die cutter regarding the issues we discussed today. 1. He said, yes 

we get all gauges of material because we do not specify and they run whatever is 

convenient. This was fine for hand packaging, and we went that way to get the 

lowest cost. It is not a problem to always use the same material for us and give us 

consistent thickness going forth. I asked what that thickness is and he was not sure, 

will be getting back to me on. 2. Regarding curl, he seems to think that the material 

is “very flat” coming off his equipment, and that the problem is that we [Brass] 

store it in a non-climate controlled warehouse for up to 2-3 months. He says it is 

very susceptible to humidity and that we can solve the problem by storing it at 50% 

humidity . . . I discussed getting frequent deliveries of small quantities, which he 

says he can do. I’m sure my bill will go up for that . . . .

March 23, 2017, email from Durham. 

Durham testified that he expected RT to resolve the problems with the variations in the 

materials because “[t]he product was no different than the product that was submitted to them at 

the beginning of the process.” Brass Reminders had its “die cutter,” Jourdan Graphic Services,

specially shear cut material of the same thickness and sent the new batch to RT. These materials 

fed through the machine without error. But when Brass Reminders sent another batch for the June 

Factory Acceptance Test, the materials again varied and slowed the machine during the 

Acceptance Test. Durham ignored RT’s recommendation for him to spend an additional $1,500 to 

buy equipment to remove the humidity-induced static that was one of the problems slowing the 

machine. Through the summer and in the fall of 2017, RT tweaked the machine to resolve issues 

from the Acceptance Test, but it could not fix the machine to accommodate the wide variation in 

Brass Reminders’s materials. When RT informed Durham that “[d]owntime related to product 

variation or product inconsistency will not be counted against the 500 piece run rate,” Durham 

testified that he never agreed to that because Brass Reminders’s product “never changed.” But 
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Durham admitted in the same deposition that Brass Reminders’s product did vary. Durham’s 

deposition appears contradictory: 

Q. The second page of Exhibit 34, the response from RT Engineering about 

humidity is, “In terms of the humidity, if the chipboards bow or out of dimensional 

spec and do not feed properly, this is something RT can’t control and can’t be 

counted against throughput.”

A. I respectfully disagree with that. There were no dimensional specs on the—on 

the thing other than just the size of the cardstock. And, really, we didn’t even put a 

spec on that. You know, they knew what they had to create a machine to feed. And 

they did not create a machine to feed. And they did not create a machine that could 

feed them. So it does count against rated time. . . . I never agreed to a spec on a 

cardstock. 

Q. You never agreed to provide specifications on your products for RT Engineering 

. . . to design the machine? . . . 

A. Other than the specs that we provided, it was part of one of your attachments 

that said these were the decal size, can be this long—you know, anywhere from this 

long to this long, this short to this short. I forget what attachment it was, but we did 

go over it. So I did provide specifications on the size of the product. I listed the 

nominal size of the cardstocks that would be used and—and those are sheered [sic]

within probably five to six thousandths of an inch, you know, but there is variation 

on the sizes there. 

In November 2017, RT requested that Brass Reminders send a new batch of materials for 

another machine test. Brass Reminders did not respond until RT asked again in January 2018.

Brass Reminders sent a partial shipment of materials the next day and another batch in midFebruary. After running the machine successfully using these new materials, RT Engineering 

emailed Durham a video of the machine running and wrote: “What we have found is that the 

machine will run fine when the [Brass Reminders] product is not bent, stuck together or 

oversize/undersize. RT feels confident the machine will run consistently if good product is used.” 

Durham did not respond until RT Engineering followed up over a week later. On March 2, Durham 

wrote that while “[t]he video was promising,” he expressed frustration that the project was “now 

about 1.5 years late.” Durham also wrote that “should the machine fail this time, I will ask for a 

full refund of all monies paid and cancel the order. It needs to work this time . . . so that it takes a 
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‘perfect storm’ to stop the machine, not a perfect storm for it to run.” On March 7, RT responded 

that the machine would work so long as it was not fed “bad product that the machine was not 

designed to handle: 1. Product that stick together either by static or poor slitting; 2. Product that is 

curled.” RT’s email also provided variance specifications that either increased the tolerances from 

the original Functional Specification Document (to better accommodate the variations in Brass 

Reminders’s materials) or added tolerances for parameters that Durham had never given (e.g. decal 

thickness, static-induced curling). RT thought it was helping Brass Reminders by modifying the 

tolerances and adding new specifications. But Durham took umbrage at the changes and grew 

suspicious, handwriting on a printed copy of RT’s email, “They are now specifying tolerances for 

parts. Trying to get machine to pass test, but it has to run our parts, not an artificial set of 

specifications they created.” (emphasis in original).

Ahead of the second Factory Acceptance Test scheduled for May 2018, Brass Reminders 

shipped RT a new batch of material to feed through the machine during the Acceptance Test. In 

April, RT notified Durham by email that, although the chipboards were fine, the decals had 

significant variances that would present problems for the machine. In particular, the decals were 

bent and bowed, even beyond the new tolerances RT had set to accommodate this issue. RT 

attached pictures of the problem. Durham responded:

The slight curve is the way these are, and they cannot be changed. Your job was to 

design a machine that can insert them. If the current design won’t do the job, you 

will have to change the machine so it will. . . . If the machine does not do these jobs 

flawlessly after 2 years of having my money tied up we will request a full refund. 

RT responded that “the machine was designed and built based on samples that were not 

curved to the extreme we have seen.” RT assured Durham that it would “sort and straiten [sic] [the 

material] to the best of our ability” but asked Durham to bring more consistent materials to the 

Factory Acceptance Test.
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The Factory Acceptance Test in May 2018 did not go well. The machine jammed and 

Durham therefore refused delivery of the machine. RT believed that the jamming occurred, yet 

again, because of Brass Reminders’s inconsistent materials. In the aftermath of the failed 

Acceptance Test, Durham emailed cutter Jourdan Graphic Services and acknowledged that the 

materials caused the jamming: “[A]t the last trial, variation in the size of the backer cards from 

shearing became an issue. We need to look at die cutting the backer cards for consistency.” In an 

email to RT in June, Durham wrote that RT engineer “Darren [LaBonne] was saying the looseness 

of tolerance on a sheared product was causing him problems and he was suggesting having the 

cards die cut . . . . I think the expense of that would be prohibitive.”

RT proposed that it would purchase, at its own cost, die-cut materials from Brass 

Reminders’s vendor “to prove that there was nothing wrong with the machine.” But Durham 

ordered his vendor not to sell die-cut materials to RT because, as Durham testified, “I didn’t want 

the machine to prove itself out on something that we couldn’t continue to use. It had to prove itself 

on the stock that we could afford to use.” In an email to RT in June, Durham again acknowledged 

that “consistency” of the materials was an “issue” and said that Brass Reminders “did not specify 

tolerances [at the outset of the project] because it simply did not matter to us” when it had handpackaged the decals. Brass Reminders sent RT a new set of sheared materials in July. Brass 

Reminders’s cutter told Durham that he would endeavor to shear-cut the materials as close to the 

dimensional tolerances as possible. RT received the materials in July but misplaced them and did 

not respond until Brass Reminders’s email message in November, cancelling the project and 

demanding a full refund because “RT is not capable of producing a machine to meet the agreed on 

specifications[.]” RT’s president responded, apologizing for misplacing the materials, and offered

to forego the final balance of $40,659.75 “due to the significant delay.” RT also asked for the 
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opportunity to test the misplaced materials. Apparently, Durham rejected this proposal, and Brass 

Reminders filed suit. The suit sought a refund of all the money it has paid to RT, and damages.

B. Procedure

Brass Reminders filed its complaint in Kentucky state court on April 29, 2019. RT removed 

the case to federal district court on June 6, 2019. After discovery, RT moved for summary 

judgment on Brass Reminders’s claims and its own counterclaim for breach of contract, and the 

district court granted summary judgment in favor of RT. 

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Donald v. Sybra, Inc., 

667 F.3d 757, 760 (6th Cir. 2012). A federal court must grant summary judgment if, viewing the 

facts in the light most favorable to the non-moving party, “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see 

also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). 

B. The Terms and Conditions Were Incorporated by Reference

Neither party disputes the district court’s determination that a contract was formed when 

Brass Reminders accepted RT’s offer (the quote) by paying RT the required “40% due with 

placement of the order.” But Brass Reminders argues that RT’s hyperlinked terms and conditions 

were not incorporated by reference into their contract. That is the chief question of the case. If the 

terms were incorporated, Brass Reminders breached its contract. The district court held that the 

terms and conditions were properly incorporated by reference. We agree.

We apply Kentucky law. The lower court determined that Kentucky law applies to the 

incorporation question and neither party disputes that determination on appeal. Brass Reminders 

relies on Dixon v. Daymar Colleges Group, LLC, 483 S.W.3d 332 (Ky. 2015), to argue that RT’s 
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terms and conditions were not incorporated by reference into the contract because RT “cannot 

prove express assent by Brass Reminders to be bound” to those terms. Dixon, however, has 

significant differences from this case. 

In Dixon, the Kentucky Supreme Court held that a for-profit university’s arbitration clause 

placed on the back of the “Student Enrollment Agreement” contract was not a valid part of the 

contract. Because the arbitration clause came after the signature line, it could only become part of 

the contract if some language before the signature line incorporated the clause. 483 S.W.3d at 345–

46; Ky. Rev. Stat. § 446.060(1). The court found that the contract failed to incorporate the 

arbitration clause because the text of the student-enrollment agreement merely asked students to 

acknowledge that they “read both pages of” and “received a copy of” the enrollment agreement. 

Id. at 346. “Assent to be bound by the terms of an agreement must be expressed, and simply 

acknowledging the receipt of the document does not constitute assent to be bound.” Ibid (quoting 

Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 456 (Ky. 2009)). And the only “true incorporating 

language in the Agreement” applied only to “any applicable amendment,” a category that did not 

include the arbitration clause. Id. at 345. 

Much of Dixon’s analysis, which concerns the language and location of the arbitration 

clause after the signature line, does not provide an immediate answer here. Although Durham did 

sign the Customer Introduction Agenda (which referenced the terms and conditions) and the 

Functional Specification Document, the district court found that the contract was formed earlier,

without Durham’s signature, when Brass Reminders placed its order and paid RT forty percent of 

the total price listed in RT’s quote.

Yet despite these differences, Dixon provides general guidance: “[I]t must be clear that the 

parties to the agreement had knowledge of and assented to the incorporated terms.” Id. at 344 
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(quoting 11 Williston on Contracts § 30.25 (4th ed. 2014)). Further, “there must be ‘clear language 

expressing the incorporation of other terms and conditions.’” Ibid. (alterations removed) (quoting 

Bartelt Aviation, Inc. v. Dry Lake Coal Co., 682 S.W.2d 796, 797 (Ky. Ct. App. 1985)). The parties 

dispute whether Brass Reminders had knowledge of, and assented to, the incorporated terms and 

conditions, and that clear language incorporated the terms and conditions. 

Unlike in Dixon, here there is no misleading language. The quote, for example, did not ask 

Durham to merely acknowledge receipt of the terms and conditions, as the student enrollment 

agreement did in Dixon. The terms and conditions are listed in the quote as “Item P,” along with 

other alphabetized items that both parties agree are binding contract terms. The terms and 

conditions are not referenced in any appendix or supplemental document, but in the quote’s table 

of contents and at the end of the quote. This provided the required clear language of incorporation 

and notice that the contract in Dixon lacked. 

A more recent Kentucky Supreme Court case involving a contested arbitration clause

emphasized the importance of notice in determining questions of incorporated terms: “[A] person 

is presumed to know those things which reasonable diligence on his part would bring to his 

attention.” LP Louisville East, LLC v. Patton, 605 S.W.3d 300, 315 (Ky. 2020). Describing “well 

settled principles of contract law,” Patton quoted an earlier case:

It is the settled law in Kentucky that one who signs a contract is presumed to know 

its contents, and that if he has an opportunity to read the contract which he signs he 

is bound by its provisions, unless he is misled as to the nature of the writing which 

he signs or his signature has been obtained by fraud.

Ibid. (quoting Hathaway v. Eckerle, 336 S.W.3d 83, 89–90 (Ky. 2011)). 

To be sure, this case does not involve a signed contract. But that does not alter the 

applicability of Patton’s logic or the principles of well-settled contract law: Notice of a contract’s 

terms is presumed when a person has the opportunity to read the contract and accepts the contract 
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offer. A party cannot abrogate the terms it dislikes after the fact, unless terms are misleading, as 

they were in Dixon. There is no dispute that Brass Reminders accepted the contract. The language 

of the quote was not misleading. The presumption that Durham and Brass Reminders knew the 

terms and conditions of the contract applies. The terms and conditions were plainly listed in the 

quote, and a hyperlink to them was provided. Reasonable diligence required that Durham or one 

of his employees click the hyperlink (or ask RT for a hard copy) and read the terms and conditions. 

Unlike the students in Dixon, Durham is a reasonably sophisticated businessman who has run a 

successful company for decades. He even told RT Engineering that he had some familiarity in 

ordering automated machine equipment.2 Engineer LaBonne testified that Durham represented that 

“he knew about automation and tolerancing and dimensioning” that would be necessary for the 

design of the machine. 

Further, there is no allegation that RT in any way attempted to deceive Brass Reminders 

about the terms and conditions, or that the terms and conditions were in any way concealed from 

Durham’s consideration. Rather, Durham admits he did not read the terms and conditions because 

he did not want to read them. He testified in his deposition that he viewed many of the details of 

the quote as “minutiae” that he “[did not] care” about, and that he reviewed only “the parts that I 

felt were germane to me.” He testified that he did not look up RT’s terms and conditions: 

“I probably didn’t notice that at the time. . . . I don’t think I went to that website. . . . I remember 

skipping in the airport to the part of here’s the price; here’s how long it’s going to take and probably 

never read all of this.” 

2

“I’m somewhat familiar with automation. About 20 years ago I sold industrial metals. Several of 

my clients did automation work. I specced out and purchased a lights-out running LSR mold, but 

never ordered custom automation equipment.” 
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Durham was given further notice of the terms and conditions when he signed RT’s 

Customer Introduction Agenda after the “on boarding” meeting in June 2016. See Cent. Adjustment 

Bureau, Inc. v. Ingram Assocs., Inc., 622 S.W.2d 681, 686 (Ky. Ct. App. 1981) (“By signing the 

covenants and continuing their employment . . . [the individuals] must be deemed to have assented 

to be bound by them. They cannot be heard to deny their validity.”). The terms and conditions 

were explicitly referenced directly above the Customer Introduction Agenda’s signature line. This 

was the second time an RT document referenced the terms and conditions (they were first 

referenced in the quote), and the second time Durham failed to question or object to them. This

suggests he knew he agreed to the terms and conditions at formation. We need not determine if 

Durham “ratified” the contract through this subsequent signing. What matters is that Durham again 

had notice of the terms and conditions and had notice early in the process. The agenda explicitly 

referred, in bold, to the terms and conditions directly above the signature line, noting that “[a] copy 

[of] [t]he T&C’s for RT Engineering are [sic] available for review on our website.” Not once did 

Durham inquire about the terms and conditions.

Therefore, the terms and conditions were incorporated by reference and became part of the 

parties’ agreement. 

C. Brass Reminders Breached Its Contract with RT Engineering

The lower court determined that Massachusetts law applies to the breach-of-contract issue

and neither party disputes that determination on appeal. 

Brass Reminders argues that it did not breach the contract and that the district court granted 

summary judgment in error because there is a genuine issue of material fact as to whether the 

materials it provided to RT Engineering contained “variances.” The record does not demonstrate 

a genuine dispute of material fact. Even after viewing the facts in the light most favorable to Brass 
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Reminders, the undisputed record leaves no doubt that variations in Brass Reminders’s materials 

caused ongoing problems with the machine. Therefore, Brass Reminders breached its obligation 

under the contract.

Brass Reminders contends that “the Dimension Specifications provided by Brass 

Reminders early in the relationship with RTE clearly set out the range of sizes of its decal product 

(i.e., tolerances) that RTE’s machine was contracted to package.” But this is contradicted by 

Durham’s testimony. He said he listed the “nominal size of the cardstocks that would be used . . . 

but there is variation on the sizes there.” Durham also testified, “There were no dimensional specs 

on the—on the thing other than just the size of the cardstock. And, really, we didn’t even put a 

spec on that.” 

Brass Reminders emphasizes that the dimensions listed for the decals (not the other 

materials) said that they “will always be square or rectangular but can be ANY dimension subject 

to the above minimums and maximums.” But the internal decal size-ranges Brass Reminders 

describes were not a source of machine error. A persistent problem was that the decals bent and 

bowed, causing the machine to slow or jam. Brass Reminders did not specify curvature as a 

variability in its original dimension specification, nor did it specify the thickness of its cardstock. 

Durham also acknowledged in an email to RT that the curling of the materials came from storing 

them in Brass Reminders’s non-climate-controlled warehouse. 

Another problem was that the materials exceeded the original tolerances Brass Reminders 

had provided. As discussed, a significant point of miscommunication was that RT understood

Brass Reminders’s dimension specifications to use the ASME industry standard for tolerances 

even though Durham had no such intention and only intended to write the principal dimensions of 

the materials. But the terms and conditions required that Brass Reminders provide “dimensional 
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tolerances of each product . . . along with all process specifications which will in any manner effect

[sic] the performance of the Seller’s equipment . . . .” (emphasis added). 

Brass Reminders also asserts that “it is quite apparent that the District Court and RTE 

confuse the Brass Reminders product for which the Dimension Specifications were provided—the 

novelty decal—with other packaging materials (plastic bags, header cards and ‘chipboard’ backer 

cards).” But the header cards and chipboard cards also caused problems with the machine. For 

example, Durham acknowledged in his email to his cutter that, “at the last trial variation in the size 

of the backer cards from shearing became an issue. We need to look at die cutting the backer cards 

for consistency.” RT initially did not know the materials were shear-cut (and instead believed they 

were die-cut) because Durham “constantly” referred to his shear-cutter as his “die cutter.”

Brass Reminders argues that Durham’s testimony “regarding the product samples provided 

throughout the relationship with RTE” is “consistent and clear.” Brass Reminders cites the 

following excerpts of Durham’s deposition: 

I don’t feel like there’s been any variability in our product. The product that I gave 

them as samples is the product I have today. It can’t change. It is what it is. That’s 

the product they had to package.

[I]t’s the same material that we provided at the quote.

The product was no different than the product that was submitted to them at the 

beginning of the process.

I cannot change what the product is. The product is the product.

Reading these carefully selected quotes in context, however, shows that Durham uses the 

term “variability” in different ways throughout his deposition and communications. At one level 

of generality, Brass Reminders supplied RT the “same” product, in that the principal dimensions 

of the materials did not change (though the tolerances did) and in that Brass Reminders used the 

same cutter and material sources as it had in the past. But at a more specific level, the level that 

affected the machine, Durham admitted that the product had variations. For example, “variation in 
Case No. 20-5671, Brass Reminders Co. v. RT Engineering Corp.

17

the size of the backer cards from shearing became an issue.” In an email to RT, Durham 

acknowledged that, as his cutter told him, “we get all gauges of material because we do not specify

and they run whatever is convenient. This was fine for hand packaging, and we went that way to 

get the lowest cost. It is not a problem to always use the same material for us and give us consistent 

thickness going forth.” Durham admitted that even though he did “provide specifications on the 

size of the product. I listed the nominal size of the cardstocks that would be used . . . but there is 

variation on the sizes there.” Durham also admitted that the product was variable in the samples 

Brass Reminders provided. 

Brass Reminders was required under the terms and conditions to specify the dimensional 

variations that would affect the machine. There is no genuine dispute of material fact that it failed 

to do so and failed to provide consistent materials to RT Engineering. Thus, the district court 

properly found that Brass Reminders breached the contract, and so its claim against RT for breach 

of contract failed. To the extent that Brass Reminders also challenges the district court’s ruling on 

RT’s counterclaim for breach of contract, that argument fails in light of Brass Reminders’s own 

breach. Summary judgment for defendant RT was properly granted. 

III. CONCLUSION

For these reasons, we AFFIRM.