On appeal from Superior Court, Law Division, Hunterdon County.
Pressler, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.
Defendant-appellant White Storage & Retrieval Systems, Inc. (White) appeals from orders denying its motions to compel arbitration and to stay, pending arbitration, a lawsuit brought by plaintiff-respondent Yale Materials Handling Corporation (Yale) in which Yale sought, inter alia, damages and a declaration that it properly cancelled a purchase order for a White automated materials handling system because of failure to timely deliver.*fn1
The complete system which included both hardware and software necessary to operate the hardware was the subject of an agreement consisting of various documents executed at different times. Not atypically, these documents sometimes cross-referenced, and sometimes purported to incorporate, terms of each other, a common practice which occasionally loses in consistency what may be achieved in expedition.
Among the several documents executed was a one-page "contract" signed by White on September 21, 1988 and by Yale on September 29, 1988. The first paragraph of this document
reads: "Yale Materials Handling Corporation, hereafter referred to as buyer, contracts with White Storage & Retrieval Systems, hereafter referred to as seller, for the following integrated and automated material handling system." Terms of the contract were then set forth by reference to numbered attachments. The last paragraph of the contract states: "Buyer and Seller agree that the contract is governed by: Attachment 9 -- Terms and Conditions . . ."
Attachment 9 bears on its face the language:
Software License Agreement
Thus, the Software License Agreement (SLA) in Attachment 9, although signed only by White in the record supplied to us, was at least facially incorporated as part of the contract executed on September 29, 1988. As more fully discussed below, resolution of this appeal does not require that we here determine whether this constituted a definitive incorporation of all provisions of the SLA for all purposes, but only whether the effect of this incorporation and certain language in the several documents was sufficient to create an ambiguity respecting arbitrability.
Paragraph 11.5 of the SLA provides:
Any controversy or claim arising out of or relating to this agreement or the breach of it shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The prevailing party in any action related to or arising under this agreement shall be entitled to reasonable attorneys' fees. Notwithstanding the above, the parties agree that each shall be entitled to ...