Step-Saver Data Systems, Inc. v. Wyse Technology

939 F.2d 91 (3rd Cir. 1991).

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Nature of the Case

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Facts

Step-Saver (P) noticed advertisements for Multilink Advanced. P requested information from The Software Link, Inc. (D) regarding the new version of the Multilink program. P was assured by D’s salesman that the new version of the program was ninety percent compatible with programs off the shelf for computers using MS-DOS. Based on these representations, P obtained several copies and conducted internal tests. P then decided to market a multi-user system with the Advanced program. P purchased and resold over 142 copies of the program and almost immediately began to get complaints. At least twelve of P’s customers have filed suit against P because of problems with the program. P filed a complaint against D alleging breach of warranties. P would telephone D to place an order and then would send a purchase order detailing the terms. D would ship the order along with an invoice containing essentially identical terms. No reference was made about a disclaimer of warranties during the telephone calls, on the purchase orders, or on the invoices. D printed a disclaimer on the software's box top. The box-top license contained five terms relevant to this action. The license disclaimed all express and implied warranties except for a warranty that the disks contained in the box are free from defects. The license also provided that the sole remedy was to return the defective disk for replacement and it also excluded any liability for damages direct or consequential caused by the use of the program. The license also indicated that opening the package indicates assent to the terms and conditions herein. P filed suit against D and Wyse (D1) for a failure of the program to operate properly. D1 was exonerated. The district court held that the license on top of the box governed the purchase and it was a final and complete expression of the terms of the agreement. A directed verdict was then given to D. P appealed; the box-top disclaimer never became a part of their agreement.