License Terms Are Included In The Software Shrinkwrap Agreement

Shrink-wrap contracts are becoming more common with the selling of products by mail order, telephone order and via the Internet. This decision of M. A. Mortenson Company, Inc. v. Timberline Software Corporation, et al., 970 P. 2d 803, 1999 Wash. App. Lexis 185 (Wash. Crt. App., Feb. 1, 1999), the court determined the terms of the contract between the parties. The plaintiff argued that the terms were reflected in a purchase order it had sent to one of Timberline's authorized dealers. Timberline argued that the parties' contract included license terms shipped by Timberline to Mortenson along with the software at issue. The license terms included a clause limiting any claim that could be asserted for consequential damages The court followed the determinations in ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996) and Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir., 1997) and held that the license terms sent by Timberline along with its software were part of the contract between the parties.

The following questions have been addressed in this article:

What are the conditions that a court will examine to determine if a shrinkwrap agreement is enforceable?
Was it fair to hold a person by an agreement that he or she has not read?

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