Solae, a U.S. limited liability company with its principal place of business in St. Louis, Missouri, had sold soy lecithin to Hershey Canada, Inc., a Canadian corporation with its primary place of business in Mississauga, Ontario (Canada), since 2003. The soy lecithin was incorporated into Hershey's products sold throughout Canada. Solae and Hershey negotiated contracts at the end of each calendar year for Hershey's orders of soy lecithin in the upcoming year. In January 2006, the parties reached an agreement whereby Hershey would order up to 250,000 pounds of soy lecithin from Solae in 2006 at a price of U.S. $1.2565 per pound.
In June 2006, Hershey faxed a purchase order to Solae for 40,000 pounds of soy lecithin to be delivered to Hershey's manufacturing plant in Smith Falls, Ontario, in September 2006. Solae sent an order confirmation to Hershey in June 2006. The order confirmation did not contain Solae's standard conditions of sale nor did it contain a forum selection clause. In September 2006, Solae shipped 40,000 pounds of soy lecithin to Hershey. An invoice sent to Hershey concurrent with the shipment contained the conditions of sale, including a forum selection clause providing that "the courts of Delaware shall have exclusive jurisdiction over any disputes or issues arising under this Agreement."
1. What was the court's holding with respect to the inclusion of the forum selection clause in the parties' contract?
2. What are the requirements for the formation of a contract pursuant to the CISG?
3. Did the court improperly excuse Hershey's failure to object to the forum selection clause given the parties' extended dealings (which included conditions of sale containing a forum selection clause)? Why or why not?