155.3 Use of ‘prevail’ clauses

Sometimes parties seek to win the battle of the forms by including a so-called ‘prevail’ clause in their standard terms. Prevail clauses typically state that the relevant standard terms are to apply to any resulting contract to the exclusion of any other terms and conditions, including any terms or conditions which the other side may seek to incorporate through their own documentation. A party may seek to reinforce this provision by further providing that the other side shall be deemed to accept the prevail clause by taking certain steps to perform the contract, for example,

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