Re: Consideration in a Shrinkwrap Contract

I am sure I have it straight in my mind--I am just not saying it right.

Sure, the consumer could recover his/her money. That's what the lawsuit would be about. I hope I did not suggest otherwise.

My point was simply that the consumer could not, after having been refused a refund, go home and install the software, and then claim that because of the refusal he or she was not bound by the license terms. (I disclaim all other statements, express or implied. ;-)

Brad Englund
Halverson & Applegate, P.S.
Yakima, WA

Cumbow, Robert 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 experience®
>
> -----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
>
Received on Tue Oct 31 2000 - 02:00:09 GMT