If the terms are unacceptable but the licensor/merchant does not accept a
return, the licensee gets the UCITA default rules rather than the
licensor's terms.
Carol
At 09:01 AM 10/30/00 -0800, you wrote:
>Now I see the point of difference. I'd hate to think that a court would hold
>that the consumer, having purchased the software and found himself unable to
>return it, would also be precluded from using it, and thus would simply have
>been screwed out of his money. I think most courts tend to be a little more
>consumer-friendly than that. But it's an interesting question that, as far
>as I know, remains unresolved.
>
>Robert C. Cumbow
> Graham & Dunn PC
> 1420 Fifth Avenue, 33rd Floor
> Seattle, WA 98101-2390
> 206.340.9619
> 206.340.9599 fax
> rcumbow[_at_]grahamdunn.com
> http://www.grahamdunn.com
>
> Big law firm experience
>> without the big law firm experienceŽ
>
>
>-----Original Message-----
>From: Brad Englund [mailto:benglund[_at_]halversonlaw.com]
>Sent: Friday, October 27, 2000 2:07 PM
>To: Multiple recipients of list
>Subject: Re: Consideration in a Shrinkwrap Contract
>
>
>Robert:
>
>Perhaps I misunderstood your comments. I thought you were suggesting that
>if
>the money-back option is unavailable because the store refused to return the
>money (notwithstanding the license agreement providing for the return of the
>money), the license terms inside the box would then become unenforceable.
>
>It was that proposition that I was addressing. I believe that under those
>circumstances if the customer goes ahead and installs the program anyway, a
>court would hold that the customer has "accepted" the terms--rather than
>finding
>that the customer is not bound by the terms.
>
>Brad Englund
>Halverson & Applegate, P.S.
>Yakima, WA
>
>
>
>Cumbow, Robert wrote:
>
>> I don't see how this is a disagreement with what I originally said.
>>
>> <snip>
>>
>> Cumbow, Robert wrote:
>>
>> > I'm not sure, not claiming to be an expert in such matters. But it seems
>> to
>> > me if the money-back option is unavailable then the customer has lost
>the
>> > ability to accept or decline the terms, thus providing him with a pretty
>> > good argument that the terms are unenforceable. I'd be interested in
>> others'
>> > opinions, though.
>>
>> I disagree. In Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 250, 676
>> N.Y.S.2d
>> 569 (1998), the court held that a shrink-wrap contract between the parties
>> was
>> not formed until after the period had run to return the merchandise.
>Thus,
>> if a
>> consumer attempts to return the software and the store refuses to return
>the
>> money, no contract ever formed. Which means that the sale fails for lack
>of
>> consideration. Alternatively, a contract has been formed, but the vendor
>> has
>> violated the perfect tender requirement, and the consumer can refuse
>tender
>> of
>> the software.
>>
>> In either case, consumer can sue to get his or her money back. However,
>the
>> consumer cannot use the software in violation of the shrink-wrap agreement
>> (except, perhaps, in a "cover" situation). Using the software after the
>> store
>> refuses to return the money (except in a cover situation) may be
>considered
>> "acceptance" of the software. In that event, the consumer's sole remedy
>> will be
>> to sue for the damages caused by the imperfect tender (i.e, those damages
>> that
>> flow from the license terms that prohibit a use that the consumer
>intended).
>>
>> Brad Englund
>> Halverson & Applegate, P.S.
>> Yakima, WA
>>
>
>
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>
>
^^^^^^^^^^^^^^
UETA Online <http://www.uetaonline.com> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^Received on Mon Oct 30 2000 - 23:42:05 GMT
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