of a contract as between merchants). We disagree with the court in Klocek that resolution of this issue is controlled by Section 2-207, and instead adopt the position articulated by other courts that Section 2-207 does not apply because it does not address the formation of a contract, and does not specify when additional terms may become part of a contract involving a non-merchant. See M.A. Mortenson Co., 998 P.2d at 312 (interpreting Washington’s version of the UCC, and holding that Section 2-204 addressing contract formation, not Section 2-207 addressing contract alteration, applies to determine whether terms that accompany the shipment of software were part of the contract to purchase the software, and holding that the terms were part of the contract); accord Hill, 105 F.3d at 1150 (<HOLDING>); ProCD, Inc., 86 F.3d at 1452 (applying
holding that the interpretation of an unambiguous contract is a question of law holding mutuality of obligation is essential to the formation of a bilateral contract recognizing that the question is one of contract formation and holding that section 2207 of texas ucc regarding terms added to an existing contract is irrelevant recognizing that courts will not add terms to a contract about which the contract is silent recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract