Wachter Management Company v. Dexter & Chaney, Inc.

144 P.3d 747 (2006)


P is a construction management company with its principal place of business in Lenexa, Kansas. D is a software services company that develops, markets, and supports construction software, project management software, service management software, and document imaging software for construction companies like P. D's principal place of business is in Seattle. D issued a written proposal to P on October 15, 2003, for the purchase of an accounting and project management software system. The proposal included installation of the software, a full year of maintenance, and a training and consulting package. The proposal did not contain an integration clause nor any provision indicating that it was the final and complete agreement of the parties, nor did the proposal contain any provision indicating that additional terms might be required. P signed D's proposal on October 17, 2003. D shipped the software which enclosed was a software licensing agreement, also known as a 'shrinkwrap' agreement, which provided: 'This is a legal agreement between you (the 'CUSTOMER') and D. By opening this sealed disk package, you agree to be bound by this agreement with respect to the enclosed software as well as any updates and/or applicable custom programming related thereto which you may have purchased or to which you may be entitled. If you do not accept the terms of this agreement, promptly return the unopened disk package and all accompanying documentation to D. 'CUSTOMER ACKNOWLEDGES HAVING READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER ALSO AGREES THAT THIS AGREEMENT AND THE DCI INVOICE ENUMERATING THE NUMBER OF CONCURRENT LICENSED USERS TOGETHER COMPRISE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES  RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.' The shrinkwrap agreement contains a choice of law/venue provision providing that the agreement would be governed by the laws of the State of Washington and that any disputes would be resolved by the state courts in King County, Washington. In February 2005, P sued D for breach of contract, breach of warranty, and fraudulent inducement, seeking damages in excess of $350,000. D moved to dismiss alleging improper venue. P argued that the shrinkwrap agreement was an unenforceable addition to the parties' original contract. The court denied the motion in that the shrinkwrap agreement contained additional terms that P had not bargained for or accepted. D appealed.