Accordingly, defendant cannot be deemed to have agreed to New York jurisdiction[.] [Hugo Boss Fashions, Inc v Sam's European Tailoring, Inc, 293 A.D.2d 296, 297; 742 N.Y.S.2d 1 (NY App Div, 2002) (cleaned up).]

Forum selection clauses are typically considered material and therefore require express assent to become binding. CECG, Inc. v. Magic Software Enters., Inc., 51 F. App'x 359, 364 (3d Cir. 2002); Cunningham v. Fleetwood Homes of Ga., Inc., 253 F. 3d 611, 621 n. 13 (11th Cir. 2001) (noting that forum selection clauses are generally considered material terms under state law variants of the UCC); Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc.,293 A.D.2d 296, 742 N.Y.S.2d 1 (2002) (finding that invoice containing forum selection clause and waiver of jury materially altered the parties' oral contract for sale of goods); Product Components, Inc. v. Regency Door and Hardware, Inc., 568 F.Supp. 651 (S.D.Ind.1983) ("forum selection clauses contained in seller's acknowledgment form and invoice materially altered the parties' contract"). Cases that have found similar clauses, such as an arbitration clause, not to be material, were cases where parties had signed an agreement with the clause, or such clause was present in parties' previous course of dealings.

The court held that the clause was unenforceable under § 2-207(2)(b) because "[a] forum selection clause is indisputably a material term of a contract for the sale of goods between merchants." Id. at *3 (citing Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 AD2d 296, 297, 742 N.Y.S.2d 1 (1st Dept. 2002); Pacamor Bearings, Inc. v. Molon Motors Coil, Inc., 102 AD2d 355, 477 N.Y.S.2d 856 (3d Dept. 1984); General Instrument Corp. v. Tie Mfg., Inc., 517 F. Supp. 1231, 1233-34 (S.D.N.Y. 1981)). Moreover, the court rejected the defendant's argument that the court should enforce the clause because the plaintiffs had never disputed the terms and conditions written on the invoices and held that, under Marlene Indus. Corp. v. Carnac Textiles, Inc., 45 N.Y.2d 327 (1978), "a buyer must explicitly agree to [such terms]."

Between merchants such terms become part of the contract unless: ... [b] they materially alter it.” Here, during telephone discussions, the parties negotiated the essential terms required for contract formation, and the invoices were merely confirmatory (see Hugo Boss Fashions v. Sam's Eur. Tailoring, 293 A.D.2d 296, 297, 742 N.Y.S.2d 1 [1st Dept.2002] ). Thus, the forum selection clause is an additional term that materially altered the parties' oral contracts, and defendant did not give its consent to that additional term (id.;see alsoOrkal Indus., LLC v. Array Connector Corp., 97 A.D.3d 555, 556–557, 948 N.Y.S.2d 318 [2d Dept.2012] ).

Under the circumstances of this case, and given the distance between the New York and Florida forums, the defendant's inclusion of a forum selection clause in its customer order acknowledgment forms constitutes a material alteration to the parties' initial contracts ( see Polymont Intl. v. National Polystyrene Recycling Co., 256 A.D.2d 562, 682 N.Y.S.2d 866; Pacamor Bearings v. Molon Motors & Coil, 102 A.D.2d 355, 358, 477 N.Y.S.2d 856;see also Hugo Boss Fashions v. Sam's Eur. Tailoring, 293 A.D.2d 296, 742 N.Y.S.2d 1). Therefore, upon reargument, the Supreme Court should have denied those branches of the defendant's motion which were, in effect, for summary judgment dismissing the third and fourth causes of action.

Other jurisdictions have concluded that forum selection clauses are material terms to a contract. See, e.g., Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611, 612, n. 13 (11th Cir. 2001) (arbitration clauses, like other kinds of forum selection clauses, are generally considered material terms under state law variants of the Uniform Commercial Code); Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 A.D.2d 296, 742 N.Y.S.2d 1 (2002) (finding that invoice containing forum selection clause and waiver of jury materially altered the parties' oral contract for sale of goods); Product Components, Inc. v. Regency Door and Hardware, Inc., 568 F.Supp. 651 (S.D.Ind. 1983) ("forum selection clauses contained in seller's acknowledgment form and invoice materially altered the parties' contract"); Step-Saver Data Systems, Inc. v. Wyse Technology, 939 F.2d 91(3rd Cir. 1991) (finding that disclaimer of warranty printed on software package materially altered the parties' agreement and was not to be incorporated into the parties' contract). ¶ 20 In Licitra v. Gateway, Inc., 189 Misc.2d 721, 734 N.Y.S.2d 389 (N.Y.City Civ.Ct. 2001), a New York Court found that the buyer of a personal computer was not bound by an agreement which arrived with the computer.

Moreover, particularly in a case involving foreign subject-matter, as here, the selection of a forum remote from the location of the Property would be a significant material term that would necessarily have been supplied in the written agreement and may not be established through parol evidence (cf. Lorbrook Corp. v G&T Industries, Inc., 162 AD2d 69, 73 [3d Dept 1990]; Hugo Boss Fashions, Inc. v Sam's European Tailoring, Inc., 293 AD2d 296, 297 [1st Dept 2002]). Such conclusion is all the more compelling in that, without such written submission to the jurisdiction of the courts of this State, there is no basis for the exercise of personal jurisdiction over Basel LLC.

. Moreover, particularly in a case involving foreign subject-matter, as here, the selection of a forum remote from the location of the Property would be a significant material term that would necessarily have been supplied in the written agreement and may not be established through parol evidence (cf. Lorbrook Corp. v. G & T Industries, Inc., 162 A.D.2d 69, 73 [3d Dept 1990] ; Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 A.D.2d 296, 297 [1st Dept 2002] ). Such conclusion is all the more compelling in that, without such written submission to the jurisdiction of the courts of this State, there is no basis for the exercise of personal jurisdiction over Basel LLC.

Under New York law, a forum-selection clause which is asserted for the first time in an invoice, confirmation or acknowledgment materially alters a contract, and "therefore would not be deemed a part of the agreement without express consent." Id. See also Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 A.D.2d 296, 297 (1st Dep't 2002) (forum selection clause found in invoices sent for accepted merchandise "materially alters the parties' oral contacts"); Lorbrook Corp. v. G T Industries, Inc., 162 A.D.2d 69, 72 (3d Dep't 1990) ("the additional term fixing Michigan as the forum State for litigation never became part o the contract, because it materially altered the prior agreement and [objecting party] never expressly assented to it"). Even if defendants had been in possession of the Terms and Conditions at the time the credit application was executed, "the forum-selection clause would not be a part of the parties['] agreement since it is a material alteration to-which [defendants] never expressly agreed."

A forum selection clause is indisputably a material term of a contract for the sale of goods between merchants. See Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 AD2d 296, 297, 742 N.Y.S.2d 1 (1st Dept. 2002) (forum selection clause in seller's confirmatory invoices materially altered parties' oral contract for sale of goods, where parties had not agreed upon the forum for the resolution of disputes at the time the contract was made); Pacamor Bearings, Inc. v. Molon Motors Coil, Inc., 102 AD2d 355, 477 N.Y.S.2d 856 (3rd Dept. 1984) (buyer was not bound by forum selection clause in sales order sent by seller to confirm terms of sale in response to purchase order from buyer, where forum selection clause materially altered parties' agreement and was not consented to by defendant); General Instrument Corp. v. Tie Mfg., Inc., 517 F. Supp. 1231, 1233-34 (S.D.NY 1981) (buyer was not bound by forum selection clause in written acknowledgment form sent by seller, where there was "no evidence that the forum for resolution of disputes was discussed at the time the contract was made," applying New York law).