Plaintiff It's Intoxicating Inc. is a Pennsylvania corporation that manufactures and distributes cosmetic products to various retailers. Defendant Maritim Hotelgesellschaft is a German company which owns hotels throughout Germany. Zimmer is an individual living in Berlin, Germany, and is an employee of Maritim who was delegated the authority to purchase beauty products on behalf of Maritim.
In October 2007, Zimmer informed It's Intoxicating that Maritim wished to buy its products for use in 38 of its hotels. It's Intoxicating sent via e-mail a document titled "Conditions of Sale," a proposed agreement purporting to govern various collateral aspects of the parties' developing relationship. That document stated:
This agreement will be governed by and construed in accordance with the laws of the state of Pennsylvania, United States of America. The parties hereto hereby consent to the exclusive jurisdiction and venue of the United States District Court for Luzerne County for any action that may be brought in connection with this agreement and/or from the use of the Aromapro software and/or from the use of the Aromapothecary products.
Maritim subsequently sent purchase orders to It's Intoxicating in January 2008. It's Intoxicating shipped 441 cartons of beauty products to Maritim's hotel in Dusseldorf, Germany, which were accepted by Maritim. The purchase price was $181,547.80 of which Maritim paid $73,724.85. However, in May 2008, Maritim began to run into problems selling It's Intoxicating's beauty products. By April 2009, It's Intoxicating still had not received the balance due and filed suit against Maritim. Maritim filed a motion to dismiss contending that the parties had never created a binding contract.
1. On what basis did the court conclude that the parties had not sufficiently evidenced intent to opt out of the CISG? What language would you have included in the purchase and confirmation orders to clearly evidence such intent?
2. What was the effect of the application of the CISG to the contract rather than Pennsylvania state law?