Re: Consideration in a Shrinkwrap Contract

From: Brad Englund <benglund[_at_]halversonlaw.com>
Date: Mon, 23 Oct 2000 11:43:45 -0700

JQ Johnson wrote:

> Robert Cumbow writes:
>
> > I believe that, in such situations, the "manifestation of acceptance" is
> > proceeding to install the software after clicking "OK" on the license
> > provisions. From that viewpoint, the customer does indeed have the
> > opportunity to view (if not the obligation to actually read) the license
> > terms before manifesting acceptance. He can always click no, abort
> > the install process, eject the disk, put it back in the box and return it
> > to the store. Careful consumers do this all the time, right?
>
> I actually tried to return some opened software to a store once. Got the
> runaround, of course. I imagine that with sufficient perseverence ("I'd
> like to speak to your manager...") I would have been able to get my money
> back, but it wasn't worth the hassle.
>
> UCITA predicates the enforceability of a shrinkwrap contract on the ability
> of the consumer to return the software. How easy does it have to be?

Where the right to a reimbursement of the purchase price exists, section 102(57) of UCITA provides that the purchaser must be paid the fee if the following conditions exist: (i) submission of proof of purchase, and (ii) proper redelivery of the computer information and all copies within a reasonable time after initial delivery of the information to the licensee.

The party required to make the reimbursement is the party that received the fee (i.e., the store).

Under section 112, if the store unjustifiably fails to reimburse the fee, the result is that the consumer is deemed not to have assented to the terms that the consumer did not have a right to review prior to the purchase. Thus, those terms that the consumer did not have notice of prior to the purchase are not a part of the contract.

In that case, the terms of the agreement will be determined not by the shrink-wrap agreement, but by the circumstances, including the expectations of the parties, applicable usage of trade and course of dealing, and the property rights, if any, involved in the transaction.

> What about the situation (not uncommon in this era of failing dot coms) of
> a software "purchase" from an Internet mailorder company that goes out of
> business before I get around to trying to return the unacceptable software?
> What about middlemen whose policies include a 20% "restocking fee"?

No "restocking fee" can be charged. A return is defined as a return of the fee. Anything less than that does not qualify as a return. Additionally, under Section 209, for mass-market software the purchaser is entitled to the following, in addition to the price of the software:

        (1) reimbursement of any reasonable expenses incurred in complying with the licensor’s instructions for returning or destroying the software or, in the absence of instructions, expenses incurred for return postage or similar reasonable expense in returning the software; and

        (2) compensation for any reasonable and foreseeable costs of restoring the licensee’s information processing system to reverse changes in the system caused by the installation, if:

                (A) the installation occurs because information must be

installed to enable review of the license; and

                (B) the installation alters the system or information in it but

does not restore the system or information after removal of the installed information because the licensee rejected the license.

Brad Englund
Halverson & Applegate, P.S.
Yakima, WA Received on Mon Oct 23 2000 - 18:42:47 GMT