Defendant, Wesco Distribution, Inc., appeals as of right the trial court’s order of judgment for plaintiff, DaimlerChrysler Corporation (Chrysler). Wesco’s arguments on appeal pertain to the trial court’s order granting summary disposition for Chrysler with respect to liability. Although Wesco posits sеveral arguments for reversal, we find one dispositive. That is, Wesco could not be held liable to indemnify Chrysler under this contract for an injury that occurred before the contract was formed. On this basis, we reverse and remand.
*242 I. FACTS AND PROCEEDINGS
Wesco, a distributor, has a business relationship with Eaton Electrical Engineering Services and Systems Division, which provides service and support to users of Eaton Electrical products and supports factories with warranties and other equipment needs. Eaton uses distributors like Wesco as intermediaries when performing electrical wоrk for customers like Chrysler. In general, Eaton prepares a quotation for the work to be performed and submits it to Wesco. Wesco then applies a markup and supplies the quotation to the customer. If Wesco and Eaton are awarded the job, Wesco thеn receives a purchase order from the customer and sends it to Eaton, which performs the work.
On July 23, 2002, Jay Karnik and Jack Hemmert of Chrysler called Mark Stephens, a field services engineer for Eaton, and asked him to come to Chrysler’s plant in Newark, Delaware, to look at some damaged electrical equipment contained in a capacitor bank and prepare a quotation for the work that would be required to repair it. When Stephens arrived at the plant, two or three High Voltage Maintenance Corporation (HVMC) еmployees were working on electrical equipment near the damaged capacitator bank. After Stephens finished gathering the information necessary to formulate a quotation for the repairs, Hemmert asked Stephens if he could borrow a phase rоtation meter. Stephens retrieved the meter from his van and handed it to Hemmert. Stephens eventually sought to retrieve his meter. The Chrysler employees were about to use the meter, but one of them handed the meter to Stephens instead because it was “[his] device.” One оf the HVMC employees, who were standing next to Stephens, touched two of the leads to the transformer. Stephens *243 then touched the third lead to the transformer, and pushed the button. The equipment then exploded.
According to Dale Schmidt, a district manager for Eaton, Eaton was not able to use the information Stephens collected on that day because his notes were lost or destroyed during the accident. Schmidt and Jimi Jones, an Eaton employee responsible for direct sales, ultimately returned to the Delaware facility and “started from scratch,” recollecting the information, and reformulating the quotation. In determining the extent of the damage, they “probably” also used some photographs that Stephens had taken of the equipment on July 23, 2002. The work of Schmidt and Jones resulted in an August 2, 2002, quotation from Eaton to Wеsco, which Wesco used to formulate the quotation that it submitted to Chrysler, also on August 2, 2002. Wesco’s quotation describes the work to be performed as “LABOR AND MATERIAL TO COMPLETE SERVICE WORK AND A 5KV METAL ENCLOSED CAPACITATOR BANK” and quotes the prices as $17,461, or $21,649 with optional overtime hours.
On August 8, 2002, Chrysler issued a purchase order to Wesco, which describes the work to be performed as follows: “PROVIDE ALL LABOR, MATERIAL AND SUPERVISION TO SERVICE, TROUBLE SHOOT AND REPAIR (1) 5KY METAL ENCLOSED CAPACI-TATOR BANK.” It also refers to Wesco’s August 2, 2002, quotation, and lists the same $17,461 price. The purchase order includes an indemnification clause, which provides, in part: “Seller... shall protect, defend, hold harmless, and indemnify DaimlerChrysler from and against any and аll loss ... arising out of or related to the performance of any work in connection with this contract.” On September 26, 2002, Wesco issued Chrysler an invoice, in the amount of $17,461, *244 for the repair of the capacitator bank, which Chrysler paid without objection on October 30, 2002.
In 2003, Stephens filed a personal injury action against Chrysler and HVMC in a Pennsylvania state court. Chrysler sought indemnification from Wesco and HVMC. They apparently refused, and Chrysler filed this action. As part of a settlement agreement between Stephens, HVMC, and Chrysler, Chrysler agreed to dismiss its claims agаinst HVMC, and the trial court entered an order to that effect. Wesco filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (0(10). The trial court, pursuant to MCR 2.116(I)(2), instead granted summary disposition for Chrysler with respect to liability, and thereafter entered judgment for Chrysler, awarding it $941,894.81, which included the $750,000 settlement that Chrysler paid to Stephens, attorney fees, litigation expenses, and prejudgment interest on those amounts.
II. ANALYSIS
We review a trial court’s decision on a motion for summary disposition de novo.
Rose v Nat’l Auction Group,
Before addressing the indemnity issue, we first dispatch with Wesco’s argument that thе August 8, 2002, purchase order was not the final contract. Wesco bases much of its argument on an analysis of the parties’ exchange of documents under the Uniform Commercial Code-Sales (UCC), MCL 440.2101
et seq.
However, the UCC does not apply in this case because the primary purposе of the contract was the provision of services, rather than goods, and the UCC applies to transactions in goods. MCL 440.2102;
Neibarger v Universal Cooperatives, Inc,
Applying the common law, the trial court correctly hеld that the August 8, 2002, purchase order constituted a counteroffer, which Wesco accepted by its performance. “Before a contract can be completed, there
*246
must be an offer and acceptance. Unless an acceptance is unambiguous and in strict conformance with the offer, no contract is formed.”
Kloian v Domino’s Pizza, LLC,
This quotation constitutes an offer to sell which offer expressly limits acceрtance to the terms of this offer on the back of this quotation. This offer shall be firm for a period of fifteen (15) days from the date of this offer. Subject to Buyer’s credit worthiness, the return of this form with a Purchase Order number or any other reasonable manner of acceptance will be sufficient to form an agreement on the terms and conditions on the back of or attached to this quotation.
“An offer is defined as the 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 conсlude it.” Kloian, supra at 453 (quotation marks and citation omitted). Wesco’s quotation constituted an offer because it expressed Wesco’s willingness to enter into an agreement and invited Chrysler’s assent.
Chrysler responded with a purchase order that mirrors the key terms of Wesco’s offer: listing the sеrvices to be performed, as well as the price, and referring to Wesco’s quotation. However, the purchase order also states, “SELLER AGREES TO SELL AND DELIVER THE GOODS OR SERVICES IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THE ORDER.” Clause # 054 of the purchase order, which requires Wesco to indemnify Chrysler, conflicts with a provision in Wesco’s terms and conditions requiring Chryslеr to indemnify Wesco.
*247
Because an acceptance must be in strict compliance with the offer in order for an agreement to be formed, no contract was formed at this point.
Kloian, supra
at 452-453. Rather, Chrysler’s purchase order constituted a rejection of Wesco’s offer, and instead was a counteroffer.
Harper Bldg Co v Kaplan,
Wesco accepted this counteroffer by performing the contract work. See
Sanchez v Eagle Alloy, Inc,
Although the trial court correctly held that the August 8, 2002, purchase order constituted the contract, we believe it erred by ruling that the terms of the *248 indemnity clause of that contract applied to an act and injury occurring before August 8, 2002.
“This Court construes indemnity contracts in the same manner it construes contracts generally.”
Badiee v Brighton Area Schools,
In arguing that the indemnification provision cannot be applied retroactively, Wesco correctly notes the general rule that a contract “cannot be construed to operate retrospectively,”
In re Slack Estate,
The indemnification provision in Chrysler’s purchase order provides, “Seller. .. shall protect, defend, hold harmless, and indemnify DaimlerChrysler from and against any and all loss ... arising out of or related to the performance of any work in connection with this contract.” This plain and unambiguous language makes clear that indemnification appliеs only to any loss that is related to work performed in connection with the August 8, 2002, contract. That contract required labor and material to be supplied for repair of the capacitor bank, and all of that work was started and completed after August 8, 2002. Obviously, the Steрhens injury occurred well before the contract was formed (indeed, even before an offer was even made), and was not related to the work performed on the capacitor bank. Consequently, Stephens’s injury was not covered by the indemnity clause.
DaimlerChrysler relies on G-Tech Professional Staffing, Inc, supra, as well as several unpublished, nonprecedental decisions, 3 in support of its argument that the indemnity clause covered Stephens’s precontract injury. But all G-Tech recognized is that the words *250 “related” and “connecting” within an indemnity provision required an expansive reading of what was “related” or “connected” to the work performed under the contract. See G-Tech Professional Staffing Inc, supra at 186-187. 4 That conсlusion, however, does not assist us in resolving the issue presented here. It is one thing to decide whether an injury occurring during the term of the contract falls within the contract’s coverage language, but it is quite another to decide whether a party has agreed to indemnify another fоr an injury that occurred before the indemnity provision was agreed upon. Hence, unlike in G-Tech, where the Court was addressing whether a postcontract injury was related to the work performed under the contract, we must look to whether the parties provided language that shows an intent to require indemnification for precontract activity. As we have explаined, there is no such language, and Stephen’s precontract injury is not covered by the indemnity provision.
Reversed and remanded for entry of a judgment in favor of Wesco. We do not retain jurisdiction.
Notes
Wesco’s reliance on
Power Press Sales Co v MSI Battle Creek Stamping,
Although neither relevant nor necessary to our decision under Michigan law, we note in passing that the rule in Michigan is consistent with that in several other states. See, e.g.,
Pena v Chateau Woodmere Corp,
See MCR 7.215(C)(1).
We also point out that the injury caused in G-Tech occurred after formation of the contract. See id. at 187.