310 P.3d 824
Wash. Ct. App.2013Background
- West Consultants purchased Deltek Vision software from reseller A&E and separately accepted Deltek’s click-through license during installation; the A&E purchase order reserved choice-of-law/venue in Washington (King County) and disclaimed implied warranties for the software.
- The Deltek click-through license (accepted on installation) included express warranties, disclaimers of implied warranties, and a forum selection clause requiring suit in Fairfax County, Virginia or E.D. Va.
- West sued Deltek and A&E in King County alleging CPA violations, breach of implied warranties, and unjust enrichment; Deltek moved to dismiss for improper venue based on its license forum clause.
- The trial court dismissed West’s claims against Deltek without prejudice for improper venue and awarded Deltek reasonable attorney fees and costs; West appealed and Deltek cross-appealed.
- The court analyzed whether the transaction constituted a layered contract and whether the license forum-selection clause governs claims that “relate in whole or in part” to the license.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the A&E purchase order’s Washington forum clause controls claims against Deltek | The purchase agreement binds Deltek and its King County forum clause governs all claims | The contracts are "layered"; claims arise under Deltek’s license so Deltek’s Virginia forum clause governs | Held for Deltek: layered contract applies; license clause governs because claims relate to the license |
| Whether West assented to the license terms (click-through) | West claims it did not read the license; argues lack of new consideration for modifying venue | Deltek argues click-through amounted to assent and transaction formed layered contract | Held for Deltek: assent via installation/use is sufficient under Mortenson; actual reading not required |
| Whether enforcing the Virginia forum clause violates Washington public policy/CPA | West contends clause frustrates CPA remedies and prevents Washington plaintiffs from recovery | Deltek argues clause is presumptively valid absent strong public-policy showing | Held for Deltek: no showing that clause eliminated feasible remedy or violated public policy; Dix not controlling here |
| Entitlement to attorney fees and costs under RCW 4.28.185(5) and on appeal | West argues fee award improper/untimely; challenges scope | Deltek seeks fees for added cost of litigating in Washington and appellate fees under RAP 18.1 | Held for Deltek: fee award affirmed under RCW 4.28.185(5); appellate fees awarded limited to added Washington-defense costs |
Key Cases Cited
- M.A. Mortenson Co. v. Timberline Software Corp., 140 Wn.2d 568 (Wash. 2000) (approves "layered contracts" for software transactions and treats assent by use as acceptance of license terms)
- Dix v. ICT Grp., Inc., 160 Wn.2d 826 (Wash. 2007) (forum clause unenforceable when it effectively precludes small-value class relief and leaves no feasible alternative)
- Saleemi v. Doctor’s Assocs., 176 Wn.2d 368 (Wash. 2013) (discusses enforceability of standard-form forum-selection clauses and related precedent)
- Payne v. Saberhagen Holdings, Inc., 147 Wn. App. 17 (Wash. Ct. App. 2008) (addresses limits on awarding added-cost fees to foreign defendants)