WIEAND, Judge:

On May 17, 1987, Amos Cobaugh was playing in the East End Open Golf Tournament on the Fairview Golf Course in Cornwall, Lebanon County. When he arrived at the ninth tee he found a new Chevrolet Beretta, together with signs which proclaimed: “HOLE-IN-ONE Wins this 1988 Chevrolet Beretta GT Courtesy of KLICK-LEWIS Buick Chevy Pontiac $49.00 OVER FACTORY INVOICE in Palmyra.” Cobaugh aced the ninth hole and attempted to claim his prize. Klick-Lewis refused to deliver the car. It had offered the car as a prize for a charity golf tournament sponsored by the Hershey-Palmyra Sertoma Club two days earlier, on May 15, 1987, and had neglected to remove the car and posted signs prior to Cobaugh’s hole-in-one. After Cobaugh sued to compel delivery of the car, the parties entered a stipulation regarding the facts and then moved for summary judgment. The trial court granted Cobaugh’s motion, and Klick-Lewis appealed.

Our standard of review is well established. A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. *590 Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983); Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 783 (1980).

The facts in the instant case are not in dispute. To the extent that they have not been admitted in the pleadings, they have been stipulated by the parties. Therefore, we must decide whether under the applicable law plaintiff was entitled to judgment as a matter of law.

An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Restatement (Second) of Contracts § 24; 8 P.L.E. Contracts § 23. Consistent with traditional principles of contract law pertaining to unilateral contracts, it has generally been held that “[t]he promoter of [a prize-winning] contest, by making public the conditions and rules of the contest, makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter is bound to perform his promise.” Annotation, Private Rights and Remedies Growing Out of Prize-winning Contests, 87 A.L.R.2d 649, 661. The only acceptance of the offer that is necessary is the performance of the act requested to win the prize. Id. See also: Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237 (1952) (“The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract.”); 17 C.J.S. Contracts § 46.

The Pennsylvania cases which have considered prizewinning contests support the principle that an offer to award a prize in a contest will result in an enforceable contract if the offer is properly accepted by the rendition of the requested performance prior to revocation. See: Olschiefsky v. Times Publishing Co., 23 D. & C.2d 73 (Erie 1959) (overruling demurrer to action against newspaper for failure to award prize to winner of puzzle contest); Holt v. *591 Wood, Harmon & Co., 41 Pitt.L.J. 443 (1894) (holding offer to award house to person submitting name selected for new housing development resulted in binding contract). See also: Aland v. Cluett, Peabody & Co., 259 Pa. 364, 103 A. 60 (1918); Palmer v. Central Board of Education of Pittsburg, 220 Pa. 568, 70 A. 433 (1908); Trego v. Pa. Academy of Fine Arts, 2 Sad. 313, 3 A. 819 (1886); Vespaziani v. Pa. Dept. of Revenue, 40 Pa.Cmwlth 54, 396 A.2d 489 (1979).

Appellant argues that it did nothing more than propose a contingent gift and that a proposal to make a gift is without consideration and unenforceable. See: Restatement (Second) of Contracts § 24, Comment b. We cannot accept this argument. Here, the offer specified the performance which was the price or consideration to be given. By its signs, Klick-Lewis offered to award the car as a prize to anyone who made a hole-in-one at the ninth hole. A person reading the signs would reasonably understand that he or she could accept the offer and win the car by performing the feat of shooting a hole-in-one. There was thus an offer which was accepted when appellee shot a hole-in-one. Accord: Champagne Chrysler-Plymouth, Inc. v. Giles, 388 So.2d 1343 (Fla.Dist.Ct.App.1980) (bowling contest); Schreiner v. Weil Furniture Co., 68 So.2d 149 (La.App. 1953) (“Count-the-dots” contest); Chenard v. Marcel Motors, 387 A.2d 596 (Me.1978) (golf tournament); Grove v. Charbonneau Buick-Pontiac Inc., 240 N.W.2d 853 (N.D. Sup.Ct.1976) (golf tournament); First Texas Savings Assoc. v. Jergins, 705 S.W.2d 390 (Tx.Ct.App.1986) (free drawing).

The contract does not fail for lack of consideration. The requirement of consideration as an essential element of a contract is nothing more than a requirement that there be a bargained for exchange. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 541, 526 A.2d 1192, 1195 (1987); Commonwealth Dept. of Transp. v. First Nat’l Bank, 77 Pa. Cmwlth. 551, 553, 466 A.2d 753, 754 (1983). Consideration confers a benefit upon the promisor or causes a detriment to the promisee. Cardamone v. University of Pittsburgh, *592253 Pa.Super. 65, 72 n. 6, 384 A.2d 1228, 1232 n. 6 (1978); General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964). By making an offer to award one of its cars as a prize for shooting a hole-in-one at the ninth hole of the Fairview Golf Course, Klick-Lewis benefited from the publicity typically generated by such promotional advertising. In order to win the car, Cobaugh was required to perform an act which he was under no legal duty to perform. The car was to be given in exchange for the feat of making a hole-in-one. This was adequate consideration to support the contract. See, e.g.: Las Vegas Hacienda, Inc. v. Gibson, 77 Nev. 25, 359 P.2d 85 (1961) (paying fifty cents and shooting hole-in-one was consideration for prize). See also: First Texas Savings v. Jergins, supra (enforcing duty to award prize in free drawing where only performance by plaintiff was completing and depositing entry form).1

*593There is no basis for believing that Cobaugh was aware that the Chevrolet automobile had been intended as a prize only for an earlier tournament. The posted signs did not reveal such an intent by Klick-Lewis, and the stipulated facts do not suggest that appellee had knowledge greater than that acquired by reading the posted signs. Therefore, we also reject appellant’s final argument that the contract to award the prize to appellee was voidable because of mutual mistake.' Where the mistake is not mutual but unilateral and is due to the negligence of the party seeking to rescind, relief will not be granted. Rusiski v. Pribonic, 326 Pa.Super. 545, 552, 474 A.2d 624, 627 (1984), rev’d on other grounds, 511 Pa. 383, 515 A.2d 507; McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288 (1969).

In Champagne Chrysler-Plymouth, Inc. v. Giles, supra, a mistake similar to that made in the instant case had been made. There, a car dealer had advertised that it would give away a new car to any bowler who rolled a perfect “300” game during a televised show. The dealer’s intent was that the offer would continue only during the television show which the dealer sponsored and on which its ads were displayed. However, the dealer also distributed flyers containing its offer and posted signs advertising the offer at the bowling alley. He neglected to remove from the alley the signs offering a car to anyone bowling a “300” game, and approximately one month later, while the signs were still posted, plaintiff appeared on a different episode of the television show and bowled a perfect game. The dealer refused to award the car. A Florida court held that if plaintiff reasonably believed that the offer was still outstanding when he rolled his perfect game, he would be entitled to receive the car. See also: Grove v. Charbonneau Buick-Pontiac Inc., supra (car dealer required to award prize to participant in 18-hole golf tournament played on nine-hole golf course where it had offered to award a car “to the first entry who shoots a hole-in-one on Hole No. 8” and plaintiff aced the hole marked No. 8 while driving from the seventeenth tee).

*594It is the manifested intent of the offeror and not his subjective intent which determines the persons having the power to accept the offer. Restatement (Second) of Contracts § 29. In this case the offeror’s manifested intent, as it appeared from signs posted at the ninth tee, was that a hole-in-one would win the car. The offer was not limited to any prior tournament. The mistake upon which appellant relies was made possible only because of its failure to (1) limit its offer to the Hershey-Palmyra Sertoma Club Charity Golf Tournament and/or (2) remove promptly the signs making the offer after the Sertoma Charity Golf Tournament had been completed. It seems clear, therefore, that the mistake in this case was unilateral and was the product of the offeror’s failure to exercise due care. Such a mistake does not permit appellant to avoid its contract.

Affirmed.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge,

dissenting:

“Golf ... is ... a game of relaxed recreation and limitless enjoyment for millions and a demanding examination of exacting standards ...” (Robert Trent Jones, Preface of The Golf Course, Geoffrey S. Cornish and Ronald E. Whit-ten, The Rutledge Press, Revised Edition, 1987). In short, golf — as demonstrated by the vast majority of its practitioners who never have and never will score a round at par — is a sport requiring precise skills.

Making a hole-in-one, however, is such a fortuitous event that skill is almost an irrelevant factor. Because of that fact (an element of chance), combined with the payment of an entry fee to the East End Open Golf Tournament (consideration) and the automobile prize (reward), my view is that the necessary elements of gambling are present thus rendering the contract sub judice unenforceable as violat*595ing the Commonwealth’s policy against gambling.1 As our Supreme Court stated eighty-five years ago in Davis v. Fleshman, 245 Pa. 224, 91 A. 489 (1914):

It is equally well settled in this jurisdiction that all mere wagering contracts are illegitimate transaction which the law declares void and which will not be enforced at the insistence of either party to the contract. It will not aid the winner to recover from the loser the amount of the stake, and it will not give assistance to the loser to recover back the amount of the bet after the transaction has been closed. It will leave the parties as it finds them. The law will not attempt to settle disputes arising between gamblers by enforcing their alleged rights arising out of an illegal transaction.

I raise this issue sua sponte since we have no jurisdiction to enforce a contract in violation of public policy. In re Estate of Pedrick, 505 Pa. 530, 534, 482 A.2d 215, 222 (1984) (public policy dictates court must raise “unclean hands” sua sponte); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (propriety of summary judgment raised sua sponte).

By couching this transaction in terms of a unilateral contract, the majority seems to opine that scoring a hole-in-one is an act of skill which a golfer can choose to undertake.2 The truth is quite the opposite.

While every golfer dreams of the day when his ball flawlessly flies into the cup, few ever experience the thrill of a hole-in-one. So few in fact that “aceing” a hole is truly an act of “luck” not skill. Consider the following statis*596tics:3 In 1988, approximately 21.7 million golfers played 434 million rounds of golf with only 34,469 holes-in-one being reported to the United States Golf Association. Golf Digest, using figures amassed since 1952, estimates that a golfer of average ability playing a par-3 hole of average difficulty has a mere 1 in 20,000 chance of aceing the hole.

While the chances increase for a professional golfer, the possibility of a hole-in-one, even for the world’s best players, is still remote. Last year only 22 holes-in-one were recorded during the Professional Golf Association’s tournament schedule.4 With approximately 300 touring professionals playing in 47 tournaments (four rounds per tournament, four par-3’s per round), the odds increased to approximately 1 in 10,000.

However, even at 10,000 to 1, the professional’s chances of aceing a hole are more akin to an act of God than a demonstration of skill. Clearly, the possibility of a hole-in-one is sufficiently remote to qualify as the necessary gambling requirement of an element of chance.

Since all of the elements of gambling are present, I see no reason to enforce this so-called unilateral contract, rather I would find that an unenforceable gambling contract was created. While I recognize that there are a variety of socially acceptable forms of gambling indulged in by the public for the most charitable of purposes and the worthiest of causes, they are nonetheless illicit under Pennsylvania law. Dollar raffle tickets for the benefit of a hospital or a Little League Baseball Association are bought and sold innocuously and routinely, and, yet, raffles constitute unsanctioned gambling. Only recently, under strict control, has bingo, a popular and social form of gambling been legalized. 10 Pa.C.S.A. § 301 et seq. See also 4 Pa.C.S.A. § 325.101 et seq. (horse racing); 72 Pa.C.S.A. § 3761-1 et *597 seq. (state lottery). Millions of citizens spend billions of dollars each year on sports betting in office pools or with the local bookmaker. However, only in one state, Nevada, is it legal so to do.

Thus, when such a rare case as this comes into court, it may be difficult to re-assert a public policy which everyday is violated by common experience, especially, such as here, where there probably was no thought of gambling or “breaking the law.” Nevertheless, we cannot usurp the role of the legislature or turn our heads away from the fundamental substance of this transaction: it is a contract, a contract covering the context of gambling. Hence, it is unenforceable no matter how much condoned or indulged.

GOODE, J.

We dealt with this case on a former appeal (115 Mo. App. 130). It has been retried and is again before us for the determination of questions not then reviewed. The appellant was an employee of the respondent company under a written contract to expire December 15, 1903, at a salary of $2,000 per annum. His duties were to attend to the sample department of respondent, of which he was given complete charge. It was his business to select samples for the traveling salesmen of the company, which is a wholesale dry goods concern, to use in selling goods to retail merchants. Appellant contends that on December 23, 1903, he was re-engaged by respondent, through its president, Thos. H. McKittrick, for another year at the same compensation and for the same duties stipulated in his previous written contract. On March 1, 1904,„.he was discharged, having been notified in February, that on account of the necessity of retrenching expenses, his services and that of some other employees, would no longer be required. The respondent company contends that its president never re-employed appellant after the termination of his written contract and hence that it had a right to discharge him when it chose. The point with which we are concerned requires an epitome of the testimony of appellant and the counter-testimony of Me*385Kittrick, the president of the company, in reference to the alleged re-employment. Appellant testified that several times prior to the termination of his written contract on December 15, 1903, he had endeavored to get an understanding with McKittrick for another year, but had been put off from time to time; that on December 23d,' eight days after the expiration of said contract, he called on McKittrick,' in the latter’s office, and said to him that as appellant’s written employment had lapsed eight days before, and as there were only a few days between then and the first of January in which to seek employment with other firms, if respondent wished to retain his services longer he must have a contract for another year or he would quit respondent’s service then and there; that he had been put off twice before and wanted an understanding or contract at once so that he conld go ahead without worry; that McKittrick asked him how he was getting along in his department, and appellant said he was very busy as they were in the height of the season getting men out—had about 110 salesmen on the line and others in preparation ; that McKittrick then said: “Go ahead, you’re all right; get your men out and don’t let that worry you;” that appellant took McKittrick at his word and worked until February 15th without any question in his mind. It was on February 15th that he was notified his services would be discontinued on March 1st. McKittrick denied this conversation as related by appellant and said that when accosted by the latter on December 23d, he (McKittrick) was working on his books in order to get out a report for a stockholders’ meeting and when appellant said if he did not get a contract he would leave, that he (McKittrick) said:

“Mr. Embry, I am just getting ready for the stockholders’ meeting to-morrow, I have no time to take it up now; I have told you before I would not take it up *386until I had these matters out of the way; you will have to see me at a later time. I said: ‘Go- hack upstairs and get your men out on the road.’ I may have asked him one or two other questions- relative to the department; I don’t remember. The whole conversation did not take more than a minute.”

Embry also swore that when he was notified he would be discharged, he complained to McKittrick about it, as being a violation of their contract, and McKittrick said it was due to the action of the board of directors and not to any personal action of his and that others would suffer by what the board had done as well as Embry. Appellant requested an instruction to the jury setting out in substance the conversation between him and McKittrick according to his version and declaring that those facts, if found to be true, constituted a contract between the parties that defendant would pay plaintiff the sum of $2,000 for another year, provided the jury believed from the evidence that plaintiff com- . menced said work believing he was to have $2,000 for the year’s work. This instruction was refused but the ■court gave another embodying-, in..substance.appellant’s version of the conversation, and declaring it made a contract “if you (the jury) find both parties thereby intended and did contract with each other for plaintiff’s employment for one year from and including December 23, 1903, at a salary of $2,000 per annum.” Embry swore that on several occasions when he spoke to Mc-Kittrick about employment for the ensuing year, he asked for a renewal of his former contract and that on- December 23d, the date of the alleged renewal, he went into Mr. McKittrick’s office and told him his contract had expired and he wanted to renew it for a year, having always worked under year contracts. Neither the refused instruction nor the one given by the court embodied facts quite as strong as appellant’s testimony, because neither referred to appellant’s alleged state*387ment to McKittrick, that unless he was re-employed he would stop work for respondent then and there. It is assigned for error that the court required the jury, in order to return a verdict for appellant, not only to find the conversation occurred as appellant swore, but that both parties intended by such conversation to contract with each other for plaintiff’s employment for the year from December, 1903, at a salary of $2,000. If it appeared from the record that there was a dispute between the parties as to the terms on which appellant wanted re-employment, there might have been sound reason for inserting this clause in the instruction; but no issue was made that they split on terms; the testimony of McKittrick tending to prove only that he refused to enter into a contract with appellant regarding another year’s employment until the annual meeting of stockholders was out of the way. Indeed, as to the proposed terms Mc-Kittrick agrees with Embry; for the former swore as follows: “Mr. Embry said he wanted to know about the. renewal of his contract; said if he did not have the contract made he would leave.” As the two witnesses coincided as to the terms of the proposed re-employment, there was no reason for inserting the above mentioned clause in the instruction in order that it might be settled by the jury whether or not plaintiff, if employed for one year from December 23, 1903, was to be paid $2000 a year. Therefore it remains to determine whether or not this part of the instruction was a correct statement of the law in regard to what was necessary to constitute a contract between the parties; that is to say, whether the formation of a contract by what, according to Embry was said, depended .on the intention of both Embry and McKittrick. Or, to put the question more precisely, j did what was said constitute a contract of re-employ- j j ment on the previous terms irrespective of the inten- j1 tion or purpose of McKittrick? Judicial opinion and elementary treatises abound in statements of the rule *388that to constitute a contract there must he a meeting of the minds of the parties and both must agree to the same thing in the same sense. Generally speaking this may be true; but it is not literally or universally true. That is to say, the inner intention of parties to a conversation subsequently alleged to create a contract, cannot either make a contract of what transpired or prevent one from arising, if the words used were sufficient to constitute a contract. In so far as their intention is an influential element, it is only such intention as the words or acts of the parties indicate; not one secretly cherished which is inconsistent with those words or acts. The rule is thus stated by a text-writer and many 'decisions are cited in support of his text: “The primary object of construction in contract law is to discover the intention of the parties. This intention in express contracts is, in the first instance, embodied in the words which the parties have used and is to be deduped therefrom. This rule applies to oral contracts, as well as to contracts in writing, and is the rule recognized by courts of equity.” [2 Paige, Contracts, sec. 1104.] So it is said in another work: “Now this measure of the contents of the promise will be found to coincide, in the usual dealings of men of good faith and ordinary competence, both with the actual intention of the promisor and with the actual expectation of the promisee. But this is not a constant or a necessary coincidence. In exceptional cases a promisor may be bound to perform something which he did not intend to promise, or a promisee may not be entitled to require that performance which he understood to be promised to him.” [Walds-Pollock, Contracts (3 Ed.), 309.] In Brewington v. Mesker, 51. Mo. App. 348, 356, it is said that the meeting of minds which is essential to the formation of a contract, is not determined by the secret intention of the parties, but by their expressed intention, which may be wholly at variance with the former. In Machine Co. v. Criswell, 58 Mo. App. 470, an *389instruction was given on the issue of whether the sale of a machine occurred, which told the jury that an intention on the part of the seller to pass the title and of the purchaser to receive and accept the machine for the purpose of making it his own, was essential to a sale, and if the jury believed such intention did not exist in the minds of both parties at the time and was not made known to each other, then there was no sale notwithstanding the delivery. In commenting on this instruction the court said:

“The latter clause of the instruction is erroneous and misleading. It is true that in every case of purchase the question of sale or no sale is a matter of intention; but such intention must always be determined by the conduct, acts and express declarations, of the parties and not by the secret intention existing in the mind or minds of the contracting parties. If the validity of such a contract depended upon secret intentions of the parties, then no oral contract of sale could be relied on with safety. [58 Mo. loc. cit. 473.]”

In Smith v. Hughes, L. R. 6 Q. B. 597, 607, it was said:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he intended to agree to the other party’s terms.”

And that doctrine was adopted in Phillip v. Gallant, 62 N. Y. 256.

In 9 Cvc. 245, we find the following text:

“The law imputes to a person an intention corresponding to' the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a *390reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and. it is immaterial what may be the real but unexpressed state of his mind on the subject.”

Even more pointed was the language of Baron Bramwell in Brown v. Hare, 3 Hurlst. & N. *484, *495:

“Intention is immaterial till it manifests itself in an act. If a man intends to buy, and says so to the intended seller, and he intends to sell and says so to the intended buyer, there is a contract of sale; and so there would, be if neither had the intention.”

In view of those authorities we hold that though McKittrick may not have intended to employ Embry by what transpired between them according to the latter’s testimony, yet if what McKittrick said would have been taken by a reasonable man to be an employment, and Embry so understood it, it constituted a valid contract of employment for the ensuing year.

The next question is whether or not the language used was of that character; namely, was such that Embry, as a reasonable man, might consider he was re-employed for the ensuing year on the previous terms, and act accordingly. We do not say that in every instance it would be for the court to pronounce on this question, because, peradventure, instances might arise in which there would be such an ambiguity in the language relied on to show an assent by the obligor to the proposal of / the obligee, that it would be for the jury to say whether , a reasonable mind would take it to signify acceptance of , the proposal. [Belt v. Goode, 31 Mo. 128; Davies v. Baldwin, 66 Mo. App. 577.] In Lancaster v. Elliott, 28 Mo. App. 86, 92, the opinion, as to the immediate point, reads:

“The interpretation of a contract in writing is always a matter of law for determination by the court, and equally so, upon like principles, is the question what acts and words, in nearly every case, will suffice to con*391stitute an acceptance by one party, of a proposal submitted by the other, so that a contract or agreement thereby becomes matured.”

The general rule is that it is for the court to construe the effect of writing relied on to make a contract and also the effect of unambiguous oral words. [Belt v. Goode, supra; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Norton v. Higbee, 38 Mo. App. 467, 471.] However, if the words are in dispute, the question of whether they were used or not is for the jury. [Belt v. Goode, supra.] With those rules of law in mind, let us recur to the conversation of December 23d between Embry and McKittrick as related by the former. Embry ', was demanding a renewal of his contract, saying he had : been put off from time to time and that he .had only a few days before the end of the year in which to seek employment from other houses, and that he would quit then and there unless he was re-employed. McKittrick inquired how he was getting along with the department and Embry said they (i. e., the employees of the department) were very busy getting out salesmen; whereupon McKittrick said: “Go ahead, you are all right; get your men out and do not let that worry you.” We think no reasonable man would construe that answer to Embry’s demand that he be employed for another year, otherwise than as an assent to the demand, and that Embry had the right to rely on it as an assent. The natural inference is, though we do not find it testified to, that Embry was at work getting samples ready for the salesmen to use during the ensuing season. Now when he was complaining of the worry and mental distress he was under because of his uncertainty about the future, and his urgent need,either of an immediate contract with respondent, or a refusal by it to make one, leaving him free to seek employment elsewhere, McKittrick must have answered as he did for the purpose of assuring appellant that any apprehension was needless, as appellant’s services would *392be retained by tbe respondent. Tbe^answer was unainbiguous, and we rule that if tbe conversation was according to appellant’s version and be understood be was employed, it constituted in law a valid, contract of reemployment, and tbe court erred in making tbe formation of a contract depend on a finding that both parties intended to make one. It was only necessary that Embry, as a reasonable man, bad a right to and did so understand.

Some other rulings are assigned for error by tbe appellant, but we will not discuss them because we think they are devoid of merit.

The judgment is reversed and tbe cause remanded.

All concur.

CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s denial of Defendant-Appellant’s motion for a stay pending arbitration, pursuant to Section 3 of the United States Arbitration Act of 1925, 9 U.S.C. § 3. The suit arose after a series of over 55 transactions during 1968, 1969, and 1970 in which Plaintiffs-Appellees *1163[hereinafter The Carpet Mart], carpet retailers in Kingsport, Tennessee, purchased carpets from Defendant-Appellant [hereinafter Collins & Aikman], incorporated under the laws of the State of Delaware, with its principal place of business in New York, New York, and owner of a carpet manufacturing plant [formerly the Painter Carpet Mills, Inc.] located in Dalton, Georgia. The Carpet Mart originally brought this action in a Tennessee state trial court,, seeking compensatory and punitive damages in the amount of $450,000 from Collins & Aikman for the latter’s alleged fraud, deceit, and misrepresentation in the sale of what were supposedly carpets manufactured from 100% Kodel polyester fiber. The Carpet Mart maintains that in May, 1970, in response to a customer complaint, it learned that not all of the carpets were manufactured from 100% Kodel polyester fiber but rather some were composed of a cheaper and inferior carpet fiber. After the cause was removed to the District Court on the basis of diversity of citizenship, Collins & Aikman moved for a stay pending arbitration, asserting that The Carpet Mart was bound to an arbitration agreement which appeared on the reverse side of Collins & Aikman’s printed sales acknowledgment forms. Holding that there existed no binding arbitration agreement between the parties, the District Court denied the stay. For the reasons set forth below, we remand the case to. the District Court for further findings.

I

We initially note that the denial of a motion to stay pending arbitration, although interlocutory in nature, is appealable to this Court. In Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935), the Supreme Court held that a motion to stay pending arbitration under 9 U.S.C. § 3 is, in effect, an application for an interlocutory injunction, the denial of which is appealable under Section 9 of the Judicial Code [now, as amended, 28 U.S.C. § 1292.] See also Hoover Motor Express Co., Inc. v. Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local No. 327, 217 F.2d 49, 51 (6th Cir. 1954). We also find that there is no conflicts of law problem in the present case, the Uniform Commercial Code having been enacted in both Georgia and Tennessee at the time of the disputed transactions. G.C.A. Tit. 109A (eff. April 1, 1963) (without Official Comments); T.C.A. Tit. 47 (eff. June 30, 1964) (with Official Comments).

II

The primary question before us on appeal is whether the District Court, in denying Collins & Aikman’s motion for a stay pending arbitration, erred in holding that The Carpet Mart was not bound by the arbitration agreement appearing on the back of Collins & Aik-man’s acknowledgment forms. In reviewing the District Court’s determination, we must look closely at the procedures which were followed in the sales transactions which gave rise to the present dispute over the arbitration agreement.

In each of the more than 55 transactions, one of the partners in The Carpet Mart, or, on some occasions, Collins & Aikman’s visiting salesman, telephoned Collins & Aikman’s order department in Dalton, Georgia, and ordered certain quantities of carpets listed in Collins & Aikman’s catalogue. There is some dispute as to what, if any, agreements were reached through the telephone calls and through the visits by Collins & Aik-man’s salesman. After each oral order was placed, the price, if any, quoted by the buyer was checked against Collins & Aikman's price list, and the credit department was consulted to determine if The Carpet Mart had paid for all previous shipments. After it was found that everything was in order, Collins & Aikman’s order department typed the information concerning .the particular order on one of its printed acknowledgment forms. Each acknowledgment form bore one of three legends: “Acknowledgment,” “Customer Acknowledg*1164ment,” or “Sales Contract.” The following provision was printed on the face of the forms bearing the “Acknowledgment” legend:

“The acceptance of your order is subject to all of the terms and conditions on the face and reverse side hereof, including arbitration, all of which are accepted by buyer; it supersedes buyer’s order form, if any. It shall become a contract either (a) when signed and delivered by buyer to seller and accepted in writing by seller, or (b) at Seller’s option, when buyer shall have given to seller specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any part of the merchandise herein described, or when buyer has received delivery of the whole or any part thereof, or when buyer has otherwise assented to the terms and conditions hereof.”

Similarly, on the face of the forms bearing the “Customer Acknowledgment” or “Sales Contract” legends the following provision appeared:

“This order is given subject to all of the terms and conditions on the face and reverse side hereof, including the provisions for arbitration and the ex-' elusion of warranties, all of which are accepted by Buyer, supersede Buyer’s order form, if any, and constitute the entire contract between Buyer and Seller. This order shall become a contract as to the entire quantity specified either (a) when signed and delivered by Buyer to Seller and accepted in writing by Seller or (b) when Buyer has received and retained this order for ten days without objection, or (c) when Buyer has accepted delivery of any part of the merchandise specified herein or has furnished to Seller specifications or assortments, delivery dates, shipping instructions, or instructions to bill and hold, or when Buyer has otherwise indicated acceptance of the terms hereof.”

The small print on the reverse side of the forms provided, among other things, that all claims arising out of the contract would be submitted to arbitration in New York City. Each acknowledgment form was signed by an employee of Collins & Aikman’s order department and mailed to The Carpet Mart on the day the telephone order was received or, at the latest, on the following day.1 The carpets were thereafter shipped to The Carpet Mart, with the interval between the mailing of the acknowledgment form and shipment of the carpets varying from a brief interval to a period of several weeks or months. Absent a delay in the mails, however, The Carpet Mart always received the acknowledgment forms prior to receiving the carpets. In all cases The Carpet Mart took delivery of and paid for the carpets without objecting to any terms contained in the acknowledgment form.

In holding that no binding arbitration agreement was created between the parties through the transactions above, the District Court relied on T.C.A. § 47-2-207 [UCC § 2-207], which provides:

“(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on *1165assent to the additional or different terms.

“(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

“(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties' do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of chapters 1 through 9 of this title.”

The District Court found that Subsection 2-207(3) controlled the instant case, quoting the following passage from 1 W. Hawkland, A Transactional Guide to the Uniform Commercial Code § 1.-090303, at 19-20 (1964):

“If the seller . . . ships the goods and the buyer accepts them, a contract is formed under subsection (3). The terms of this contract are those on which the purchase order and acknowledgment agree, and the additional terms needed for a contract are to be found throughout the U.C.C.

[T]he U.C.C. does not impose an arbitration term on the parties where their contract is silent on the matter. Hence, a conflict between an arbitration and an no-arbitration clause would result in the no-arbitration clause becoming effective.”

Under this authority alone the District Court concluded that the arbitration clause on the back of Collins & Aikman’s sales acknowledgment had not become a binding term in the 50-odd transactions with The Carpet Mart.

In reviewing this determination by the District Court, we are aware of the problems which courts have had in interpreting Section 2-207. This section of the UCC has been described as a “murky bit of prose,” Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684, 694, 473 P.2d 18, 25 (1970), as “not too happily drafted," Roto-Lith Ltd. v. F. P. Bartlett & Co., 297 F.2d 497, 500 (1st Cir. 1962), and as “one of the most important, subtle, and difficult in the entire Code, and well it may be said that the product as it finally reads is not altogether satisfactory.” Duesenberg & King, Sales and Bulk Transfers under the Uniform Commercial Code, (Vol. 3, Bender’s Uniform Commercial Code Service) § 3.03, at 3-12 (1969). Despite the lack of clarity in its language, Section 2-207 manifests definite objectives which are significant in the present case.

As Official Comment No. 1 indicates, UCC § 2-207 was intended to apply to two situations:

“The one is where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal acknowledgments or memoranda embodying the terms so far as agreed upon and adding terms not discussed. The other situation is one in which a wire or letter expressed and intended as the closing or confirmation of an agreement adds further minor suggestions or proposals such as ‘ship by Tuesday,’ ‘rush,’ ‘ship draft against bill of lading inspection allowed,’ or the like.” T.C.A. § 47-2-207 [UCC § 2-207], Official Comment 1.

Although Comment No. 1 is itself somewhat ambiguous, it is clear that Section 2-207, and specifically Subsection 2-207(1), was intended to. alter the “ribbon matching” or “mirror” rule of common law, under which the terms of an acceptance or confirmation were required to be identical to the terms of the offer or oral agreement, respectively. 1 W. Hawkland, supra, at 16; R. Nords-*1166trom, Handbook of the Law of Sales, Sec. 37, at 99-100 (1970). Under the common law, an acceptance or a confirmation which contained terms additional to or different from those of the offer or oral agreement constituted a rejection of the offer or agreement and thus became a counter-offer. The terms of the counter-offer were said to have been accepted by the original offeror when he proceeded to perform under the contract without objecting to the counter-offer. Thus, a buyer was deemed to have accepted the seller’s counter-offer if he took receipt of the goods and paid for them without objection.

Under Section 2-207 the result is different. This section of the Code recognizes that in current commercial transactions, the terms of the offer and those of the acceptance will seldom be identical. Rather, under the current “battle of the forms,” each party typically has a printed form drafted by his attorney and containing as many terms as could be envisioned to favor that party in his sales transactions. Whereas under common law the disparity between the fine-print terms in the parties’ forms would have prevented the consummation of a contract when these forms are exchanged, Section 2-207 recognizes that in many, but not all, cases the parties do not impart such significance to the terms on the printed forms. See 1 W. Hawkland, supra; § 1.0903, at 14, § 1.-090301, at 16. Subsection 2-207(1) therefore provides that “[a] definite and seasonable expression of acceptance or a written confirmation . . . operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.” Thus, under Subsection (1), a contract is recognized notwithstanding the fact that an acceptance or confirmation contains terms additional to or different from those of the offer or prior agreement, provided that the offeree’s intent to accept the offer is definitely expressed, see Sections 2-204 and 2-206, and provided that the offer-ee’s acceptance is not expressly conditioned on the offeror’s assent to the additional or different terms. When a contract is recognized under Subsection (1), the additional terms are treated as “proposals for addition to the contract” under Subsection (2), which contains special provisions under which such additional terms are deemed to have been accepted when the transaction is between merchants. Conversely, when no contract is recognized under Subsection 2-207(1) — either because no definite expression of acceptance exists or, more specifically, because the offeree’s acceptance is expressly conditioned on the of-feror’s assent to the additional or different terms — the entire transaction aborts at this point. If, however, the subsequent conduct of the parties — particularly, performance by both parties under what they apparently believe to be a contract — recognizes the existence of a contract, under Subsection 2-207(3) such conduct by both parties is sufficient to establish a contract, notwithstanding the fact that no contract would have been recognized on the basis of their writings alone. Subsection 2-207(3) further provides how the terms of contracts recognized thereunder shall be determined.

With the above analysis and purposes of Section 2-207 in mind, we turn to their application in the present case. We initially observe that the affidavits and the acknowledgment forms themselves raise the question of whether Collins & Aikman’s forms constituted acceptances or confirmations under Section 2-207. The language of some of the acknowledgment forms (“The acceptance of your order is subject to . ”) and the affidavit of Mr. William T. Hester, Collins & Aikman’s marketing operations manager, suggest that the forms were the only acceptances issued in response to The Carpet Mart’s oral offers. However, in his affidavit Mr. J. A. Castle, a partner in The Carpet Mart, asserted that when he personally called Collins & Aikman to order *1167carpets, someone from the latter’s order department would agree to sell the requested carpets, or, alternatively, when Collins & Aikman’s visiting salesman took the order, he would agree to the sale, on some occasions after he had used The Carpet Mart’s telephone to call Collins & Aikman’s order department. Absent the District Court’s determination of whether Collins & Aik-man’s acknowledgment forms were acceptances or, alternatively, confirmations of prior oral agreements, we will consider the application of section 2-207 to both situations for the guidance of the District Court on remand.

Viewing Collins & Aikman’s acknowledgment forms as acceptances under Subsection 2-207(1), we are initially faced with the question of whether the arbitration provision in Collins & Aikman’s acknowledgment forms were in fact “additional to or different from” the terms of The Carpet Mart’s oral offers. In the typical case under Section 2-207, there exist both a written purchase order and a written acknowledgment, and this determination can be readily made by comparing the two forms. In the present case, where the only written forms were Collins & Aikman’s sales acknowledgments, we believe that such a comparison must be made between the oral offers and the written acceptances.2 Although the District Court apparently assumed that The Carpet Mart’s oral orders did not include in their terms the arbitration provision which appeared in Collins & Aikman’s acknowledgment forms, we believe that a specific finding on this point will be required on remand.3

Assuming, for purposes of analysis, that the arbitration provision was an addition to the terms of The Carpet Mart’s oral offers, we must next determine whether or not Collins & Aikman's acceptances were “expressly made conditional on assent to the additional terms” therein, within the proviso of Subsection 2-207(1). As set forth in full above, the provision appearing on the face of Collins & Aikman’s acknowledgment forms stated that the acceptances (or orders) were “subject to all of the terms and conditions on the face and reverse side hereof, including arbitration, all of which are accepted by buyer.” The provision on the “Acknowledgment” forms further stated that Collins & Aikman’s terms would become the basis of the contract between the parties

“either (a) when signed and delivered by buyer to seller and accepted in writing by seller, or (b) at Seller’s option, when buyer shall have given to seller specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any part of the merchandise herein described, or when buyer has received delivery of the whole or any part thereof, or when buyer has otherwise assented to the terms and conditions hereof.”

Similarly, the provision on the “Customer Acknowledgment” and “Sales Contract” forms stated that the terms therein would become the basis of the contract

“either (a) when signed and delivered by Buyer to Seller and accepted in writing by Seller or (b) when Buyer has received and retained this order for ten days without objection, or (c) *1168when Buyer has accepted delivery of any part of the merchandise specified herein or has furnished to Seller specifications or assortments, delivery dates, shipping instructions to bill and hold, or when Buyer has otherwise indicated acceptance of the terms hereof.”

Although Collins & Aikman’s use of the words “subject to” suggests that the acceptances were conditional to some extent, we do not believe the acceptances were “expressly made conditional on [the buyer’s] assent to the additional or different terms,” as specifically required under the Subsection 2-207(1) proviso. In order to fall within this proviso, it is not enough that an acceptance is expressly conditional on additional or different terms; rather, an acceptance must be expressly conditional on the offeror’s assent to those terms. Viewing the Subsection (1) proviso within the context of the rest of that Subsection and within the policies of Section 2-207 itself, we believe that it was intended to apply only to an acceptance which clearly reveals that the offeree is unwilling to proceed with the transaction unless he is assured of the offeror’s assent to the additional or different terms therein. See 1 W. Hawkland, supra, § 1.090303, at 21. That the acceptance is predicated on the offeror’s assent must be “directly and distinctly stated or expressed rather than implied or left to inference.” Webster’s Third International Dictionary (defining “express”).

Although the UCC does not provide a definition of “assent,” it is significant that Collins & Aikman’s printed acknowledgment forms specified at least seven types of action or inaction on the part of the buyer which — sometimes at Collins & Aikman’s option — would be deemed to bind the buyer to the terms therein. These ranged from the buyer’s signing and delivering the acknowledgment to the seller — which indeed could have been recognized as the buyer’s assent to Collins & Aikman’s terms — to the buyer’s retention of the acknowledgment for ten days without objection— which could never have been recognized as the buyer’s assent to the additional or different terms where acceptance is expressly conditional on that assent.4

To recognize Collins & Aikman’s acceptances as “expressly conditional on [the buyer’s] assent to the additional terms” therein, within the proviso of Subsection 2-207(1), would thus require us to ignore the specific language of that provision.5 Such an interpretation is not justified in view of the fact that Subsection 2-207(1) is clearly designed to give legal recognition to many contracts where the variance between the offer and acceptance would have precluded such recognition at common law.

Because Collins & Aikman’s acceptances were not expressly conditional on the buyer’s assent to the additional terms within the proviso of Subsection 2-207(1), a contract is recognized under Subsection (1), and the additional terms are treated as “proposals” for addition to the contract under *1169Subsection 2-207(2).6 Since both Collins & Aikman and The Carpet Mart are clearly “merchants” as that term is defined in Subsection 2-104(1), the arbitration provision will be deemed to have been accepted by The Carpet Mart under Subsection 2-207(2) unless it materially altered the terms of The Carpet Mart’s oral offers. T.C.A. § 47-2-207(2) (b) [UCC § 2-207(2) (b)].7 We believe that the question of whether the arbitration provision materially altered the oral offer under Subsection 2-207(2) (b) is one which can be resolved only by the District Court on further findings of fact in the present case.8 If the arbitration provision did in fact materially alter The Carpet Mart’s offer, it could not become a part of the contract “unless expressly agreed to” by The Carpet Mart. T.C.A. § 47-2-207 [UCC § 2-207], Official Comment No. 3.

We therefore conclude that if on remand the District Court finds that Collins & Aikman’s acknowledgments were in fact acceptances and that the arbitration provision was additional to the terms of The Carpet Mart’s oral orders, contracts will be recognized under Subsection 2-207(1). The arbitration clause will then be viewed as a “proposal” under Subsection 2-207(2) which will be deemed to have been accepted by The Carpet Mart unless it materially altered the oral offers.

If the District Court finds that Collins & Aikman’s acknowledgment forms were not acceptances but rather were confirmations of prior oral agreements between the parties, an application of Section 2-207 similar to that above will be required. Subsection 2-207(1) will require an initial determination of whether the arbitration provision in the confirmations was “additional to or different from” the terms orally agreed upon. Assuming that the District Court finds that the arbitration *1170provision was not a term of the oral agreements between the parties, the arbitration clause will be treated as a “proposal” for addition to the contract under Subsection 2-207(2), as was the case when Collins & Aikman’s acknowledgments were viewed as acceptances above. The provision for arbitration will be deemed to have been accepted by The Carpet Mart unless the District Court finds that it materially altered the prior oral agreements, in which case The Carpet Mart could not become bound thereby absent an express agreement to that effect.

As a result of the above application of Section 2-207 to the limited facts before us in the present case, we find it necessary to remand the case to the District Court for the following findings: (1) whether oral agreements were reached between’the parties prior to the sending of Collins & Aikman’s acknowledgment forms; if there were no such oral agreements, (2) whether the arbitration provision appearing in Collins & Aikman’s “acceptances” was additional to the terms of The Carpet Mart’s oral offers; and, if so, (3) whether the arbitration provision materially altered the terms of The Carpet Mart’s oral offers. Alternatively, if the District Court does find that oral agreements were reached between the parties before Collins & Aik-man’s acknowledgment forms were sent in each instance, it will be necessary for the District Court to make the following findings: (1) whether the prior oral agreements embodied the arbitration provision appearing in Collins & Aik-man’s “confirmations”; and, if not, (2) whether the arbitration provision materially altered the prior oral agreements. Regardless of whether the District Court finds Collins & Aikman’s acknowledgment forms to have been acceptances or confirmations, if the arbitration provision was additional to, and a material alteration of, the offers or prior oral agreements, The Carpet Mart will not be bound to that provision absent a finding that it expressly agreed to be bound thereby.

III

If, on remand, the District Court finds that the arbitration provision exists as a term of the contracts recognized under this application of Section 2-207, Collins & Aikman’s motion for a stay pending arbitration must be granted despite the fact that this is an action in fraud. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court held that in passing upon a motion for a stay pending arbitration under 9 U.S.C. § 3, a federal court may not consider claims of fraud in the inducement of the overall contract when the arbitration clause is sufficiently broad to encompass claims of fraud. Rather, in such cases a federal court may consider only claims which relate to the “making” of the arbitration agreement itself. 388 U.S. at 402-404, 87 S.Ct. 1801. In the present case, the language of Collins & Aikman’s arbitration clause is virtually identical to that of the- arbitration agreement in the Prima, Paint case.9 Moreover, although The Carpet Mart challenges the legibility of the fine-print arbitration provision on the reverse side of Collins & Aikman’s forms (which was specifically called to the buyer’s attention on the face of those forms), The Carpet Mart’s claim of fraud relates only to the substitutions for Kodel polyester fibers under the overall contract and ndt to the arbitration clause itself. Therefore, upon a finding by the District Court that the arbitration clause was a term of the contracts recognized under T.C.A. § *117147-2-207 (UCC § 2-207), Collins & Aik-man’s motion for a stay pending arbitration must be granted.

For the reasons set forth above, the case is remanded to the District Court for further findings consistent with this opinion.

The opinion of the court was delivered by

BRAITHWAITE, J.A.D.

In this appeal, we are required to address whether the “knockout” rule applies in New Jersey when there are conflicting terms in a contract governed by the Uniform Commercial Code (“UCC”), codified at N.J.S.A. 12A:1-101 to 11-108. The effect of applying *526the “knock-out” rule is that the conflicting terms do not become part of the parties’ contract and the contract “consists of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this act.” N.J.S.A. 12A:2-207(3). We conclude that the “knock-out” rule applies in New Jersey and affirm the summary judgment granted to defendant Hoeganaes Corporation (“Hoega-naes”), dismissing defendant Rage Engineering Inc.’s (“Rage”) cross-claim for indemnification.

Because this appeal arises from the grant of summary judgment, we must view the facts, and all favorable inferences from those facts, in the light most favorable to Rage. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 666 A.2d 146 (1995); Strawn v. Canuso, 140 N.J. 43, 48, 657 A.2d 420 (1995). These are the facts.

Prior to 1988, Hoeganaes operated furnace 2S, which was used for annealing iron powders. In 1988, Hoeganaes undertook the conversion of furnace 2S to a distalloy furnace. Part of the conversion process required the purchase of a powder transporter system or a “dense phase system” to transport iron powder to the input end of the furnace. Hoeganaes purchased the system from Rage after inquiring from two other possible sellers.

On or about September 26, 1988, Rage proposal number 3313 for a transporter system for iron powder and a transfer system for steel powder was submitted to Edward Pirkey, senior project engineer for Hoeganaes. Hoeganaes issued purchase order No. 21584 to Rage for that equipment. The transporter system for iron powder, referred to in the Rage proposal as System I, was installed on furnace 2S.

Subsequently, Rage submitted two more proposals to Hoega-naes. Number 3353 was for target boxes and Number 3375 was for control logic panels. Hoeganaes issued purchase order Number 23952 in response to these two proposals. By May 1989, the conversion of furnace 2S was completed.

*527The proposals issued by Rage were typed in a letter format addressing the items desired by Hoeganaes. At the base of each page of each proposal, the following language in capital letters was typed: “ANY PURCHASE ORDER ISSUED AS A RESULT OF THIS QUOTE IS MADE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS ATTACHED HERETO IN LIEU OF ANY CONFLICTING TERMS PROPOSED BY PURCHASER.” The terms and conditions attached to Rage’s proposals were standard terms that were sent with every proposal and appeared in standard boilerplate format. The terms and conditions were not discussed during Rage’s meetings with Hoeganaes.

At the top of the terms and conditions was a Limitation of Acceptance which stated:

LIMITATION OF ACCEPTANCE. This sale (including all services) is limited to and expressly made conditional on Purchaser’s assent to these Terms and Conditions as well as all other provisions contained in any other document to which these Terms and Conditions are attached. Purchaser agrees: (a) These Terms and Conditions ... shall be deemed to supercede and take precedence over all prior writings, representations or agreements regarding this sale; (b) These Terms and Conditions ... shall represent our complete agreement; (e) Any inconsistent, conflicting or additional terms or conditions proposed by Purchaser in any order, acceptance or other document or form shall be void and without effect unless Seller shall specifically and expressly accept same in writing; (d) No modification of these Terms and Conditions ... will be affected by Seller’s shipment of goods/equipment or the provision of services following receipt of Purchaser’s order, acceptance or other document or form containing terms which are inconsistent, conflicting or in addition to those Terms and Conditions . .; and (e) Any acceptance of goods/equipment or services, or payment constitutes an acceptance by Purchaser of these Terms and Conditions ...

The Rage terms and conditions also had an indemnity clause, which stated:

INDEMNITY. Purchaser shall indemnify and hold Seller harmless against and in respect of any loss, claim or damage (including costs of suit and attorneys’ fees) or other expense incident to or in connection with: the goods/equipment; the furnishing of design, installation (including site preparation) or other services; processing or use by any person of any goods/equipment or system (including personal injury to the employees of Seller and Purchaser); or Purchaser’s violation of any provision of these Terms and Conditions or the provisions of any document to which these Terms and Conditions are attached unless such loss, claim or damage is due solely and directly to the negligence or willful misconduct of Seller.

*528At the bottom of the purchase orders issued by Hoeganaes the following language in bold face type appeared: “THIS ORDER IS ALSO SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS PAGE[.]” The reverse side of the purchase orders included the following section at the top of the boilerplate terms and conditions section:

1. Compliance with Terms and Conditions of Order — The terms and conditions set forth below, along with the provisions set forth on the front page hereof, constitute the entire contract of purchase and sale between Buyer and Seller. Any provisions in the Seller’s acceptance, acknowledgment or other response to this Order which are different from or in addition to any of the terms and conditions and other provisions of this Order are hereby objected to by Buyer and such different or additional provisions shall not become a part of Buyer’s contract of purchase and sale.

Furthermore, the reverse side also contained the following indemnity clause and a clause stating that the purchase order constituted the entire agreement:

14. Indemnification' — Seller agrees to indemnify and hold harmless and protect Buyer, its affiliated and subsidiary companies, successors, assigns, customers and users of its products from and against all losses, damages, liabilities, claims, demands (including attorneys fees’), and suits at law or equity that arise out of, or are alleged to have arisen out of, directly or indirectly, any act of omission or commission, negligent or otherwise, of Seller, its sub-contractors, their employees, workmen, servants or agents, or otherwise out of the performance or attempted performance by Seller of this purchase order.

16. This purchase order contains the entire agreement between the parties and the provisions hereof or rights hereunder may be modified or waived only in writing by Buyer’s authorized officials. All matters in connection herewith shall be determined under the laws of New Jersey.

Thus, both Rage and Hoeganaes exchanged documents, pertinent here, with conflicting indemnity clauses. Other than as expressed in the boilerplate language, neither side objected to the language in the documents and the contract was performed.

Plaintiff Jeffrey Richardson was an employee of Hoeganaes when he was injured by the explosion of furnace 2S on May 13, 1992. On September 15,1994, plaintiff filed suit against numerous defendants including Hoeganaes1 and Rage. Plaintiff alleged that *529Rage “did design, manufacture, maintain, assemble, inspect, test, sell and/or distribute the systems and facilities design and/or its component parts” for the furnace which caused his injuries. Plaintiff alleged breaches of the Products Liability Act, N.J.S.A. 2A:58-1 to -11, implied and express warranties and negligence. In its answer, Rage cross-claimed against Hoeganaes seeking contractual indemnification. Hoeganaes, in its answer to the cross-claim, denied any right to indemnification arising out of the contract.

On May 15, 1997, Rage filed a motion for summary judgment seeking contractual indemnification from Hoeganaes. Hoeganaes cross-moved for summary judgment seeking dismissal of Rage’s cross-claim for contractual indemnity. On August 15, 1997, the motion judge granted Hoeganaes’ motion and dismissed Rage’s claim for indemnification.

Rage’s subsequent motion for reconsideration was denied. Thereafter, plaintiff settled his claims. Rage now appeals from the summary judgment granted to Hoeganaes, dismissing Rage’s contractual indemnification claim.

On appeal, Rage contends that the motion judge erred when he applied N.J.S.A. 12A:2-207(3) and found that the parties’ contract did not include Rage’s indemnity provision. We reject Rage’s contention, concluding that the “knock-out” rule applies and that Rage’s indemnity clause did not become part of the contract.

As an initial matter, Rage asserts that we must first determine whether Hoeganaes’ purchase order constituted an acceptance or a counter-offer. Rage claims that it was an acceptance. Hoeganaes, however, contends that the real issue is whether Rage’s proposal even constituted an offer. It argues that Rage’s proposal did not constitute an offer. Hoeganaes raises this contention for the first time on appeal.2 We decline to discuss this *530issue because, before the motion judge, Hoeganaes took the position that Rage’s proposal was an offer and Hoeganaes’ response to the offer was an acceptance. The doctrine of judicial estoppel precludes Hoeganaes from maintaining a different position here because its prior position was successfully asserted in obtaining summary judgment dismissing Rage’s crossclaim for indemnification. Chattin v. Cape May Greene, Inc., 243 N.J.Super. 590, 620, 581 A.2d 91 (App.Div.1990); aff'd o.b., 124 N.J. 520, 591 A.2d 943 (1991). We also decline to consider this issue because it was not presented to the trial court. See Nieder v. Royal Indem. Ins., 62 N.J. 229, 234, 300 A.2d 142 (1973).

I

The relevant statutory provision is N.J.S.A. 12A:2-207, which provides as follows:

Additional Terms in Acceptance or Confirmation.

(1) A definite and seasonable expression of acceptance or a -written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(b) they materially alter it; or

(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such ease the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

We address first, Rage’s second point, which asserts that the “knock-out” rule should not have been applied to its indemnity *531clause. This issue has not been addressed previously by our courts in a published opinion.

We note that N.J.S.A. 12A.-2-207 addresses “additional terms in acceptance” and also uses the language “different” terms. N.J.S.A. 12A:2-207(1). In N.J.S.A 12A:2-207(2), however, where the standard to determine whether additional terms become part of the parties’ contract, the word “different” is not employed.

N.J.S.A. 12A:2-207 is silent on the question of whether “additional or different terms” mean the same thing. N.J.S.A. 12A:2-207(1). There is seemingly no agreement on that question. Northrop v. Litronic Indus., 29 F.M 1173, 1175 (7th Cir.1994). It is unclear whether the reference to “different” terms in the acceptance, N.J.S.A. 12A:2-207 (1), means that the drafters intended “different” to be treated like “additional” terms under N.J.S.A. 12A:2-207(2).

Comment three of N.J.S.A. 12A:2-207, suggests that both additional and different terms, are governed by N.J.S.A. 12A:2-207(2).3 However, comment six of N.J.S.A. 12A:2-207 advances the proposition that conflicting terms in exchanged writing must be assumed to be mutually objected to by each party with the result of a mutual “knock-out” of the conflicting terms.4

*532Scholars differ on this subject. One commentator supports the view that the drafting history of the provision indicates that the word “different” was intentionally deleted from the final draft of UCC § 2-207(2) so that different terms would not be treated under that subsection. See D.G. Baird and R. Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Va.L.R. 1217, 1240, n. 61 (1982). Others, however, believe that different equates to additional and assert that the drafting history indicates that the omission of “or different” from § 2-207(2) was a drafting error. John E. Murray, Jr., The Chaos of the “Battle of the Forms:” Solutions, 39 Vand.L.Rev. 1307, 1355 (1986); John L. Utz, More on the Battle of the Forms: The Treatment of “Different” Terms Under the Uniform Commercial Code, 16 U.C.C.L.J. 103, 110-12 (1983).

There are, however, three recognized approaches by the courts to the issue of conflicting terms in contracts under circumstances such as here. Northrop, supra, 29 F.3d at 1178; Daitom Inc. v. Pennwalt Corp., 741 F.2d 1569, 1578 (10th Cir.1984). The majority view is that the conflicting terms fall out and, if necessary, are replaced by suitable UCC gap-filler provisions. See e.g., Ionics v. Elmwood Sensors, Inc., 110 F.3d 184, 189 (1st Cir.1997) (applying Massachusetts law); Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355 (4th Cir.1994) (applying Arizona law); Northrop, supra, 29 F.3d at 1178-79 (applying Illinois law); Daitom, supra, 741 F.2d at 1578-80 (applying Pennsylvania law); Westinghouse Electric Corp. v. Nielsons, Inc., 647 F.Supp. 896 (D.Col.1986) (applying Colorado law); Owens-Coming Fiberglas Corp. v. Sonic Dev. Corp., 546 F.Supp. 533 (D.Kan.1982) (applying Kansas law); Lea Tai Textile Co. Ltd. v. Manning Fabrics, Inc., 411 F.Supp. 1404 (S.D.N.Y.1975); St. Paul Structural Steel Co. v. ABI Contracting, Inc., 364 N.W.2d 83 (N.D.1985) (applying Minnesota law); Hartwig Farms, Inc. v. Pacific Gamble Robinson Co., 28 Wash.App. *533539, 625 P.2d 171 (1981); S.C. Gray, Inc. v. Ford Motor Co., 92 Mich.App. 789, 286 N.W.2d 34 (1979).

The minority view is that the offeror’s terms control because the offeree’s different terms cannot be saved by N.J.S.A. 12A:2-207(2), because that section applies only to additional terms. Valtrol, Inc. v. General Connectors Corp., 884 F.2d 149, 155 (4th Cir.1989) (applying South Carolina law); Reaction Molding Technologies, Inc. v. General Electric Co., 588 F.Supp. 1280, 1289 (E.D.Pa.1984).

The third view assimilates “different” to “additional” so that the terms of the offer prevail over the different terms in the acceptance only if the latter are materially different. This is the least adopted approach. Mead Corp. v. McNally-Pittsburg Mfg. Corp., 654 F.2d 1197 (6th Cir.1981) (applying Ohio law); Steiner v. Mobil Oil Corp., 20 Cal.3d 90, 141 Cal.Rptr. 157, 569 P.2d 751 (1977).

We conclude that the majority approach, the “knock-out” rule, is preferable and should be adopted in New Jersey. We reach this conclusion because the other approaches are inequitable and unjust and run counter to the policy behind N.J.S.A. 12A:2-207, which addresses a concern that existed at common law. Daitom, supra, 741 F.2d at 1579-80.

At common law, there could be no meeting of the minds and thus no contract, unless there was agreement on all the terms of the contract. 2 Williston on Contracts § 6:17 (Lord ed., 4th ed.1991). This was the “mirror-image” rule, which Article 2 of the UCC jettisoned by recognizing the existence of a contract even though certain terms remain in conflict or are unresolved. Northrop, supra, 29 F.3d at 1174; Daitom, supra, 741 F.2d at 1578. This change was meant to facilitate the completion of large-scale business transactions and practically is a necessity, in light of the way the American economy functions today. See Leonard Pevar Co. v. Evans Products Co., 524 F.Supp. 546, 551 (D.Del.1981) (UCC is “intended to change the common law in an attempt to conform contract law to modern day business transactions”).

*534 N.J.S.A. 12A:2-207 was enacted to reform the common law mirror-image rule and reject the last-shot doctrine which accorded undue advantage to the mere order in which forms were sent. See J.J. White and R.S. Summers, Uniform Commercial Code, § 1-2, at 25 (2d ed.1980). Our adoption of the “knock-out” rule advances the goal of reformation of the common law mirror-image rule.

The motion judge recognized that each party created its own forms with its own terms that conflicted, yet still proceeded to transact business without objection. The judge noted:

The truth is, and this really is the truth, what’s happening is some little person some place writing these little — trying to plan it out, trying to conflict these things out, but the business people are out there delivering and taking money. And if the people really want to really get into all of this, then they should have taken their stuff away and they should have said, ooh, you know, we — you know, this is real here and, sorry, I’m not going to be able to take your check and, sorry, you’re not going to bg able to keep the stuff, but they’re not doing that. They’re just playing a little game with forms.

In granting the motion for summary judgment, the judge implicitly adopted the “knock-out” rule. An approach other than the knock-out rule for conflicting terms would result in Rage, or any offeror, always prevailing on its terms solely because it sent the first form. That is not a desirable result, particularly when the parties have not negotiated for the challenged clause.

II

Now we address Rage’s first point. Rage asserts that the motion judge erred in analyzing the matter under N.J.S.A. 12A:2-207(3) rather than N.J.S.A. 12A:2-207(2). We are satisfied that under either analysis the result is the same and, therefore, summary judgment was properly granted to Hoeganaes.

N.J.S.A. 12A:2-207(2) sets forth the standard to determine if additional terms of an acceptance becomes part of the contract. Daitom, supra, 741 F.2d at 1578. The additional terms between merchants become part of the contract unless:

(a) the offer expressly limits acceptance to the terms of the offer;

(b) they materially alter it; or

*535(e) notification of objection to them has already been given or is given within a reasonable lime after notice of them is received.

[N.J.S.A 12A:2-207(2).]

Applying this section here leads inescapably to the conclusion that Rage’s indemnity clause did not become part of the contract. Although Rage’s offer specifically limited acceptance to the terms of its offer, Hoeganaes’ acceptance materially altered Rage’s offer with respect to the issue of indemnification. Additionally, Hoega-naes’ acceptance objected to any terms or conditions of the Rage offer that were different from or in addition to any of the terms of its own acceptance.

Moreover, comment six to N.J.S.A. 12A:2-207, which expresses the “knock-out” rule that we addressed earlier in this opinion, supports the conclusion that Rage’s indemnity clause did not become part of the contract. Thus, N.J.S.A. 12A:2-207(2) offers no support for Rage’s position.

Applying N.J.S.A. 12A:2-207(3) leads to the same result. Here, the contested provision addressed indemnity and only became relevant after plaintiff was injured, some three years after the conversion of the furnace was completed. Pursuant to N.J.S.A. 12A:2-207(3), the conduct of the parties recognizes the existence of a contract and the “terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.” (Emphasis added). Because the parties’ writings disagree on indemnity, that term did not become part of the contract.

Affirmed.